Lasting Powers of Attorney and virtual Certificate Providers
Reasons to choose Wilson Browne
Many legal processes are now possible virtually, particularly in relation to the Coronavirus pandemic forcing a new way of working for almost every industry.
For example, a change in the law, until January 2022, allows for wills to be witnessed remotely which means people have been able to successfully execute a valid will whilst complying with social distancing rules. However, the same ease of creation has not been seen for Lasting Powers of Attorney (LPA).
An LPA is a legal document that allows you to appoint an Attorney (someone you trust) to deal with your property and financial affairs and/or make health and welfare decisions on your behalf. We have multiple articles available on our website which provide greater detail as to what an LPA is.
An LPA requires not only Attorneys but a Certificate Provider, which can be someone that has known you personally for at least two years (provided they are over 18 years old) or a person with professional skills giving them the necessary judgment, for example, a Solicitor.
The role of a Certificate Provider is to assess whether you hold the required mental capacity to create the LPA and ensure you are not under any undue influence.
The Office of the Public Guardian (OPG) has confirmed that the assessment conversation between the Donor (the person creating the LPA) and the Certificate Provider should be carried out in person where it can be, but can be conducted over the phone or via video link, as long as the conversation takes place in “private”.
A Certificate Provider can witness the Donor’s signature, however, the signature cannot be witnessed over the phone or via video link. The OPG have expressly stated that signatures for the LPA can only be witnessed in person – this includes every signature, whether the Donor’s or the Attorney’s.
The signature must be a ‘wet’ signature and cannot be a copy or a scan. This has created problems during the pandemic but guidance issued by the OPG advised people to find an alternative to an LPA, such as writing your wishes down or a third party mandate.
An LPA is executed as a deed and deeds in general can be electronically signed following guidance from the Law Commission. The reasoning behind LPAs not being applicable to virtual signing and/or witnessing is thought to protect vulnerable people from fraud, duress and financial abuse.
There are plans for the LPA process to be entirely virtual, but many Solicitors have objected to this for the aforementioned reasons. The OPG has, to date, introduced a virtual service that allows LPAs to be registered onto an online portal for easy access and prevention of delays, after execution of the LPA.
The guidance on witnessing of LPAs states the witness must be shown the blank signature box before signing, have a clear view of the person singing, and be shown the completed signature box after signing – all of which could effectively be achieved via video link, but it is not yet accepted practice.
If a Certificate Provider witnesses the Donor’s signature, they must be present with the Donor to then sign the LPA after them.
If the Certificate Provider has assessed the Donor via video link, the Certificate Provider cannot act as their witness and must sign the LPA ‘as soon as reasonably practicable’ after the previous step (which would be the Donor’s signature).
There is a specific order in which an LPA must be signed to be registerable – you must sign as Donor, the Donor’s witness then signs, the Certificate Provider then signs, followed by the Attorney’s and their witnesses. What is ‘reasonably practicable’ will depend upon your individual circumstances.
There is no specific guidance on how long this could be but would usually be without any unexplainable delay.