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Insights

Can a lasting power of attorney be witnessed remotely?

Posted on 23rd November 2020 in Later Life Planning

Posted by

Naomi Hoare

Solicitor
Can a lasting power of attorney be witnessed remotely?

During Lockdown we have seen various changes in the law regarding how Wills can be finalised during the pandemic, including the use of remote witnesses. However, what has been less well publicised are whether there are any equivalent rules for the remote signing of Lasting Powers of Attorneys (LPAs).

In short, the answer is ‘no’.

Like Wills, LPAs require the person making the document to sign it in the presence of a witness. Where a Will requires two witnesses, an LPA only requires one. However, while new laws enable Wills to be witnessed remotely in certain circumstances, there is currently no legally accepted alternative to the person making an LPA (the donor) actually being in the physical presence of the witness.

Like Wills, LPAs are important legal documents. However, rather than dealing with what happens to your estate when you die, LPAs enable you to appoint people who you trust to make decisions for you during your lifetime, when you no longer have the mental capacity to make those decisions yourself. This might arise, for example, if you have an accident which leaves you unconscious or if you suffer from severe dementia.

Given how useful and important these documents are, it is perhaps surprising that there is no provision enabling these documents to be witnessed remotely during the pandemic, especially while potential difficulties remain in place for finding witnesses during a period of lockdown. However, this should not deter someone who is thinking about making an LPA from doing so. The witness must be physically present at the time the donor signs. However, as only one witness is required, it is possible to arrange to sign in the presence of one witness without being in breach of the current government restrictions, as long as you are alone, meet in a public space and adhere to social distancing guidance.

Perhaps surprisingly, given the above, it is possible for the Certificate Provider to confirm that the donor understands the LPA remotely before signing their section. The job of the Certificate Provider is to ensure that the donor understands the nature and effect of the document they have signed. While the guidance from the Office of the Public Guardian says that doing this in person in preferred, it does allow for a conversation to take place over the phone or by video call. At Tozers we have been making used of this to enable us to continue to offer this service during these times.

For any help putting in place an LPA, as well as amending a current one please contact our dedicated team, or for more information about powers of attorney read our latest insight.

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