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OPG guidance on being a deputy or attorney during the coronavirus outbreak

The Office of the Public Guardian (OPG), the government body in England and Wales which oversees the registration of Lasting Powers of Attorney (LPAs), supervises deputies, and monitors potential breaches / abuses by attorneys and deputies, has recently issued guidance on how deputies and attorneys can carry out their duties during the Covid outbreak.

See here for sections on the following topics:

  • I cannot visit the person because of social distancing or self-isolation
  • I cannot do something for the person because I’m self-isolating or shielding
  • Working with the person’s health or care providers
  • Can I stop acting as an attorney or deputy temporarily?
  • Giving money to family or friends

The guidance highlights that the duties of attorneys have not changed, but there may of course be some practical difficulties in performing these duties at present.  Given the restrictions on movement and communication it may be difficult for attorneys to act in the donor's best interests (when it may be difficult to assess these), carry out the donor's instructions (when it may be difficult to obtain these) and perform their functions (if they are self-isolating for instance).  However, they must not delegate their decision making unless authorised to by the LPA or the Court.  Specific permissions such as authority to delegate investment decisions by holding investments in discretionary management schemes, can be given to attorneys in the LPA documents.  However, if permission has not been given to delegate, as the guidance highlights, attorneys can seek assistance in carrying out their duties but cannot temporarily stop acting as an attorney nor delegate decision making itself without first seeking permission from the Court of Protection.

Another key principle for attorneys is to assume a person has capacity to make a decision unless, after taking all practicable steps to help them to make the decision without success, it is established that they lack the capacity to do so.  As good communication can be vital to helping a person make a decision/ assessing whether a person is capable of making a decision themselves, there will be decisions that need to be delayed (if possible). There will be other decisions that will need to be taken in their best interests (if more urgent) based on phone calls and the knowledge the attorneys have on the donor's wishes/ past decisions, as the guidance suggests.  It can be difficult for attorneys to take into account all the needed considerations and attorneys should seek advice if they are unsure of their duties, responsibilities and/or authority given under the relevant LPA.

The last issue raised in the guidance is a brief reminder regarding the limitations to deputies and attorneys' powers to make gifts (including loans), which may become particularly relevant to individuals who are facing financial difficulties in the current climate.  For although it may be permissible to make gifts to a charity that the donor may have previously supported or modest gifts on occasions such as birthdays, to relatives or those connected to the donor, it is easy to fall outside these permitted exceptions.  If the value of the gift could be deemed to be unreasonable or if the attorneys wish to make a gift at a time that does not coincide with a customary occasion, they should seek advice on whether an application to the Court of Protection is required.  If the main motivation for the gift is IHT planning, it is likely that permission of the Court will be needed.

For further advice on the process for making gift applications to the Court of Protection or attorney's duties and responsibilities during this time, please contact a member of the Boodle Hatfield Private Client & Tax team.

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240 Blackfriars Road
London
SE1 8NW
DX 53 Chancery Lane

Telephone: +44 (0)20 7629 7411
Fax: +44 (0)20 7629 2621
Email: bh@boodlehatfield.com

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