LPAs, whilst new to Guernsey, have existed in Jersey and in England and Wales for some time. However, until the LPA Ordinance came into force, where a person who was ordinarily resident in Guernsey was deemed to be unable to manage his or her own affairs due to some sort of infirmity, it was necessary for a guardian and/or family council to be appointed by the court to manage their affairs.
Any existing simple power of attorney would also stop working when the grantor (that is the person granting the power of attorney) loses the ability and the capacity to make decisions, for themselves. The LPA must be created at a time where the grantor has capacity and will remain in force after the grantor has lost the capacity to make decision for him or herself. Having an LPA in place removes the need for court applications for guardianships at an already stressful time.
Whilst the decision to have an LPA in place ultimately rests on the individual concerned, banks, financial institutions and medical providers need to review their procedures to ensure they are LPA friendly in the event that one kicks in for a client, patient or customer.
WHAT IS AN LPA?
An LPA allows an individual to be able to plan for their future and to put in place arrangements to support them at a time when they may no longer have capacity to make decisions for themselves.
Individuals are able to register two different types of LPA:
- one for property and financial affairs and
- the second for health and welfare matters,
it is also possible to make combined application to register both types.
The current registration fee for one LPA is £80 or if a person wishes to register both LPAs’ at the same time, the fee will be £100.
WHO CAN MAKE AN LPA?
The grantor (that is the person granting the LPA) may only make an LPA if they are aged 16 or over and have capacity. This means that they must be able to understand what an LPA is and what decisions the attorney(s) can make on the grantor’s behalf.
WHO CAN ACT AS AN ATTORNEY?
A person is eligible to be appointed and act as an attorney if they are aged 18 or over, have capacity and (for the purposes of a property and finance LPA) is not a bankrupt (“Bankruptcy” is further defined within the LPA Ordinance and the Capacity (Bailiwick of Guernsey) Law, 2020) either in Guernsey or anywhere else in the world.
For property and finance LPAs, a person holding or deemed to hold a primary or secondary fiduciary licence can also act as an attorney.
The LPA Ordinance allows for the appointment of one or more attorneys. If there is more than one attorney, the LPA must specify whether they are to act jointly, jointly and severally or a combination of the two according to the task to be undertaken and this can be drafted into the LPA application to avoid any issues further down the line.
HOW TO APPLY FOR AN LPA
Application forms for registering LPAs are available to be downloaded from here Guernsey Royal Court – LPA forms or available for collection from the Greffe. The Royal Court has also issued some useful guidance which can also be found at this location.
Anyone wishing to register an LPA is asked to submit a completed form to the Greffe. They will then be asked to attend the Greffe with proof of identity and the correct registration fee. A more formal capacity assessment takes place when the attorney considers that the LPA should be activated for use when the grantor no longer has capacity to make significant decisions. The LPA Ordinance also sets out the Royal Court’s power to suspend the operation of an LPA where the attorney is not acting in the donor’s best interests and also explains the powers of investigation where a lack of capacity, undue influence or actions contrary to the grantor’s best interests are suspected.
WHEN DO LPAS TERMINATE?
LPAs will terminate upon the death of the grantor or following its revocation by the grantor before he or she loses capacity. It is also possible for the court to terminate the LPA if it is in the best interests of the grantor or because an attorney has acted inappropriately. The court will also be able to give guidance to the attorney where direction is required.
OPTION TO USE LPA AS A GENERAL POWER OF ATTORNEY BEFORE INCAPACITY SETS IN
The LPA Ordinance enables the grantor to let their attorney act for them whilst they still have capacity to manage their own affairs. This may be helpful if they are away from the island and need something done on their behalf. However, the attorney may only act with the agreement of the attorney to use the LPA in this way.
FOREIGN EQUIVALENTS
A foreign lasting or enduring power of attorney (EPA) allows an individual who is deemed to be mentally sound to confer power upon another to act on their behalf in regard to all, or specific, matters, such as the signing of legal documents. Whilst these do not originate in Guernsey, it is possible to register EPAs which have been granted in other jurisdictions in the Guernsey Courts so that they may be considered by service providers on the island for non-resident clients.
OUR RECOMMENDATIONS
There is no requirement to take legal assistance in registering an LPA. However, we recommend that where the instructions are complicated, the grantor would benefit taking legal advice to ensure that their wishes are fully covered. Equally, once the LPA comes into force, an attorney would do well to take legal advice to ensure they fully understand the extent of their powers as well as any restrictions imposed on the decisions they make. An attorney must always take decisions which are in the best interests of the grantor and only within the powers granted to them in the LPA. It is helpful to note that the LPA Ordinance provides all attorneys some protection where they act in good faith.
From the position of a service provider, we also recommend a review of in-house procedures to ensure that they dovetail with the ability of clients or patients to use LPAs. Additional information may be required as part of an onboarding process and ongoing checks may be necessary to ensure the requisite LPA is still in force. Particularly where a grantor chooses to allow that LPA to work before the grantor become incapacitated.
For further information, please contact:
Lisa Upham, Appleby
lupham@applebyglobal.com
