A Lasting Power of Attorney (LPA) gives someone (the attorney) the authority to make decisions on behalf of another person (the donor) if they cannot make those decisions for themselves, even after the donor has lost his or her mental capacity. There are two types of LPA – one for Property and Financial Affairs (P&FA) and one for Personal Health and Welfare (H&W). Whilst the LPAs deal with different areas of the donor’s life, the principles governing the attorney’s actions are the same. If there is more than one attorney, then the LPA will set out whether those attorneys are to act jointly (ie all must act together at all times), jointly and severally (ie they may act either together or independently) or jointly for some decisions and jointly and severally for others (and the distinction between those decisions must be set out in the LPA).
LPAs were set up by the Mental Capacity Act 2005 (MCA) which also created a Code of Practice for attorneys.
The Code can be downloaded or viewed at www.gov.uk/opg/mca-code.
The overriding principle for attorneys is that they must act in the donor’s best interests. The LPA itself lists five main principles in Section 8 which every attorney must read before he or she signs and accepts the sometimes onerous task of looking after another’s financial or welfare affairs for an unknown length of time.
Those five principles are as follows:-
1 The attorney must assume that the donor can make his or her own decisions unless it is established that the donor can’t (usually but not exclusively when healthcare professionals become involved).
2 The attorney must help the donor with all practical steps to make as many of their own decisions as they can, so for instance, it may help to write issues down or choose the donor’s best time of day for a discussion.
3 An unwise decision by the donor does not make them mentally incapable. A flutter on the bookies for the Grand National may be unwise but is not critical but an addiction to the Tote may be!
4 Once the donor cannot make decisions for themselves, the attorney must take decisions in the donor’s best interests. This will include talking to the donor and also consulting other people and advisors who are close to the donor.
5 Any decision made by the attorney should aim for the least restrictive choice for the donor’s rights and freedoms so whilst a residential home may seem the time and money-saving choice, perhaps changes to the donor’s home and the arrangement of assistance within the home may be in the donor’s best interests.
Lasting Power of Attorney for Health and Personal Welfare.
An LPA (H&W) can ONLY be used once it has been registered AND the donor has lost mental capacity. The attorney will be aware of any preferences and instructions expressed by the donor and contained in the LPA but should also check with family and possibly the donor’s surgery to find out if an advance directive or living will exists or whether an advance statement or care plan has been prepared. If the donor has completed Option A in the LPA, he or she will also have given the attorney the authority to consent to life-sustaining treatment. If the donor chooses Option B, then the medical staff will make decisions as to treatment based on their view of the donor’s best interests. The sort of decisions that an attorney for an LPA (H&W) makes will include:-
Giving or refusing consent to health care, including medical treatment
Deciding if the donor can stay in their own home and getting help and support from social services or, if and when that becomes unsustainable, finding a good care home and moving the donor into residential/nursing care
Making decisions about such personal matters as the donor’s diet, dress, daily routine and visitors
Lasting Power of Attorney for Property and Financial Affairs.
The donor may specify in the LPA if the attorney can act even while he or she retains mental capacity. The attorney has to have the donor’s consent in those circumstances and seek direction, if possible, but this can be useful, for instance in cases of ill-health or prolonged physical disability. In any event, if the donor loses their mental capacity, the attorney will have to manage the donor’s property and affairs and make those decisions that the donor cannot make. This may include:-
Paying bills and liaising with utilities and care providers
Operating bank and building society accounts
Making investment decisions
Selling the donor’s home or other property.
The attorney must keep the donor’s property and money entirely separate from his or her own and keep accounts, receipts and records of financial transactions made on the donor’s behalf. The Office of the Public Guardian (OPG) may ask the attorney to produce these accounts at any time.
There are strict limits on the right of an attorney to make gifts on the donor’s behalf. Whilst it is quite acceptable to make gifts from the donor’s funds for birthday and Christmas presents to those people for whom the donor themselves provided, the gifts must be reasonable in the context of the donor’s previous practice and current financial resources. It is not acceptable to expand the list of people receiving gifts or increase the amount paid. Furthermore, the attorney cannot make gifts, for example, for Inheritance Tax planning or to pay grandchildren’s school fees (regardless of what has happened in the past) without making an application to the Court of Protection for permission to do so.
An attorney cannot make or amend the donor’s Will.
Both Lasting Powers of Attorney.
Before the attorney can start to use the LPA, they will be asked to prove their authority usually by producing the LPA or a copy to such institutions as banks, care homes, utility companies, local authorities, medical services etc. They should not send the original document to such an institution. The attorney can produce the original for examination or provide a certified copy for the institution to keep. There may be other steps to take, for instance, by proving their own identity or completing a mandate before consent to act is given.
The attorney will only be paid for his or her services if the LPA itself includes express authorisation for the payment of fees in the Instructions section. If this is not included, the attorney may only recover out-of-pocket expenses from the donor’s funds. This will include covering the cost of the attorney’s phone calls, travel and postage on the donor’s business.
There are other duties that have to be observed by an attorney in respect of either or both types of LPA:-
Ensure that there is no conflict of interest between their affairs and those of the donor.
Not to make any unauthorised profit from dealing with the donor’s affairs.
Keeping the donor’s affairs confidential.
Whilst the attorney cannot delegate his or her authority to anyone else, they can take professional advice and indeed should do so if the LPA contains the appropriate authority in the Instructions section in relation to the management of an investment portfolio.
Act with honesty and sympathy.
Apply the same care and skill that the attorney would apply to the management of his or her own affairs. (Professional attorneys are subject to a higher degree of care and skill).
Follow any specific instructions given in the LPA, for instance, preparing and submitting accounts to a particular person or ensuring that diet or religious principles are observed in the donor’s care.
Be aware of the guidance given by the donor in the Preferences section of the LPA.
If anyone suspects that the attorney is not acting correctly or is exploiting or abusing the donor, then that person may report the attorney to the OPG who will look into the complaint. The OPG has a team of visitors who investigate such allegations and look into the attorney’s conduct and can ask to see the attorney’s records and in serious cases, report the matter to the Court of Protection to deal with. A co-attorney should raise any concerns that they might have with the other attorney but if matters cannot be resolved, then those concerns should be referred to the OPG.
If the attorney decides to stop acting for any reason or wishes to retire, then he or she must complete the appropriate notice and send it to the donor and the OPG and any other co-attorneys.
Finally, the attorney’s authority ceases if the LPA is cancelled (providing the donor has retained mental capacity) or if the donor dies. If there is a joint appointment of attorneys, then the appointment of the surviving attorneys will cease unless a replacement attorney is appointed.
Today we live in a world where are we rely upon the Internet. Increasingly it is the main storage area for our financial and personal lives and yet the process of inheriting these assets is not straightforward. In the UK there is no legislation that deals with digital assets or issues of access and transferability of digital assets. There isn’t even any European law or directive that deals with the transferability of digital assets upon death. There is legislation in the USA and Canada at state level and also in France. And yet there is a wide range of the consequences of death for an account holder amongst different digital institutions (from Facebook that enables families to memorialise an account to iCloud where the account will be terminated and all content deleted).
What is a digital asset?
A digital asset is any asset that is accessed or held online. It is not a tangible item but it may have monetary or sentimental value and is accessed through your computer. This definition includes a wide range of items from social media (Facebook and Twitter), content holders (iTunes, eBooks and music) online gaming sites, blogs, virtual currency (bit coins) or cloud storage (Drop Box). There is a vast range of assets from the personal entries on a Facebook account to valuable assets such as a YouTube vlog or books stored online.
Problems for an executor
From the point of view of a trustee or executor, digital assets pose an awkward problem. There may be no paper trace of such an asset if these are held on-line. Increasingly traditional asset holders such as banks, credit card and company registrars are moving to an online presence where there is little or no physical evidence of the account. You may no longer have paper bank statements, credit card statements, share certificates or evidence of a share trading account. and access may only be obtained through a password. We all know how difficult it is to keep track of our passwords (perhaps more so in the context of the advice to change passwords regularly). Furthermore, does the deceased own the digital asset or is it merely licensed? Apple and Amazon make clear in their terms and conditions that an account is licensed not owned and the contents are non-transferable. Many digital asset holders have terms and conditions that mean disclosing your password to a third party is in breach of security. The assets may also be located in different jurisdictions with different laws applying to the release or transfer of data. For instance, in the United States, the law prohibits the release of data without the consent of the original user so a court order may be required to give the executor or attorney access to the deceased’s account. You can see from the above that the identification of such assets can cause serious problems for an executor and attorney or deputy and it may be a slow and costly process to administer such assets.
Do executors have to access digital assets?
If an asset has a monetary value, then the executor has a duty to locate and realise the asset as part of his or her normal duties to manage the estate properly. There may be adverse consequences if this is not done, for example, business emails to and from a sole trader, dormant accounts being charged a levy or deleted or the transfer of an income stream from a monetised YouTube channel. Social media accounts may not have any monetary value but their sentimental value may matter more to the bereaved family and friends. There is always the danger that if not accessed within a specific time, the account may be deleted.
What about sharing passwords?
It may seem the most obvious and simple solution to leave a list of passwords with your other assets but this requires discipline to stay updated and of course, it may also be in direct breach of the terms and conditions of your online account. The most obvious example is the prohibition on sharing your password or PIN with a third party for banking and credit card account. Furthermore, it may be against specific laws in certain jurisdictions. It is therefore difficult for a professional advisor to suggest a deliberate breach of contract.
What can you do to assist your executors?
There are some practical steps that can be taken to deal with the devolution of digital assets:-
It is helpful to keep a personal assets log in any event but in the era of online assets, it has become much more important. Note down your assets and print out pages that relate to key digital assets to assist with their identification. Sometimes it is helpful as a protective measure to print out sheets especially if the only communication is digital, for instance with the DVLA or HMRC or for share ownership.
Think about practical solutions like sharing your photographs.
Keep your Letter of Wishes up to date with instructions to your executors as to your wishes in relation to your digital assets, for instance to close your Twitter account.
It may be helpful to include a specific gift in your Will or appoint a digital executor to manage these assets. Google and Facebook, for example, allow the appointment of a legacy or trusted contact to access the deceased user’s accounts.