The current regime of LPAs, therefore, requires a certificate provider to countersign the document to confirm that the donor has the mental capacity to make the document and give the power. Once completed, a power of attorney also has to be registered with the OPG before any attorney can begin to exercise their powers.
The legislation and accompanying regulations contain various rules and restrictions about who may act as certificate provider or witness to the donor’s and the attorney's signatures. Once again these are designed to try and prevent abuse of vulnerable individuals. Unfortunately, however, they can often catch out the unwary with significant implications.
The recent case of the Office of the Public Guardian and PGO, MAB and MJD ([2019] EWCOP13) is a case in point. BGO executed both a finance and a health and welfare lasting power of attorney in which she appointed her husband and two solicitors as her attorneys with authority to act jointly and severally. Both of the LPAs were registered by the OPG, and it was only sometime later that a financial institution noticed that the donor's signature had been witnessed by one of the attorneys – it would seem by one of the solicitors.
The current version of the LPA document makes it clear that an attorney and a replacement attorney must not witness the signature of the donor. As a result of this error (which was not picked up by the OPG), the court confirmed that the legislation renders the document invalid and incapable of rectification. As a result, the only way forward was either to complete fresh lasting powers of attorney if the donor still had capacity or to apply to the Court of Protection for the appointment of a deputy because the donor had lost capacity.
Whilst the Court of Protection will appoint a deputy in relation to an individual's financial affairs in almost all cases, it is far less willing to grant a health and welfare power of attorney – especially with the same wide scope of a health and welfare lasting power of attorney. In this case, the donor had lost capacity so that it was not possible to create fresh lasting powers of attorney. The costs and regulatory regime for Deputyships are more expensive and time-consuming than LPAs highlighting the need to observe the regulations carefully.
For further information about any of the issues raised in this ebriefings, please contact Clare Burke.
It has been another difficult few weeks for many of us, especially those who find themselves under tier 3 restrictions.
We have submitted our response to the White Paper Consultation based on the discussion held at the “Planning for the Future - what does this mean for affordable housing” webinar we held on Fri 9 Oct
Anthony Collins Solicitors is pleased to have been ranked as a Band 1 firm once again.
Since March 2020, commercial property owners and occupiers across many sectors, whether housing associations, charities, care providers or local authorities, have been impacted by the rules regulating how they deal with their tenants and their landlords. It seems each week there is a change in policy, regulation or legislation, governing how they must respond.
On 18 September 2020, the High Court gave its decision regarding the Judicial Review of Simply Learning Tutor Agency Ltd & Others v Secretary of State for Business.
A key element of the Bill is the establishment of a duty holder regime and requirement to maintain the ‘golden thread of information’ throughout the life cycle of high-risk residential buildings
We have been working with care homes to update their contracts and advise on the risks of charging the resident a regular “top-up” or additional fee where a resident is funded through NHS CHC
The parliamentary processes are complete and the Restriction of Public Exit Payments Regulations 2020 (“the Regulations”) which cap exit payments in the public sector at £95,000 will be in force from 4 November.
As the UK’s social housing sector recovers from the initial Covid-19 outbreak and lockdown, now is the time to focus on the challenges that may emerge next.
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