The current pandemic has led to the most vulnerable in society needing the help and support of families, friends and professionals more than ever. However, with the current rules on lockdown and social distancing, it has also proven more challenging than ever to support those individuals.
Guidance to deputies and attorneys around social distancing
The Office of the Public Guardian (‘OPG’) has therefore published guidance which is being regularly updated and which can be found here.
The guidance explains the responsibilities and duties which deputies and attorneys owe and how they can continue to act in the best interests of the donor/protected party during the outbreak.
“During the coronavirus outbreak, your role and responsibilities as a deputy or attorney remain the same. However, you must follow government guidance on social distancing, self-isolation and shielding.”
Delegation and termination of appointment
The guidance confirms that deputies and attorneys cannot temporarily give up or delegate their role even if they cannot visit the donor during the lockdown period, whether because they are in isolation or shielding because of government guidance.
An attorney or deputy who wishes to stop acting will, on application to the court, permanently cease to be an attorney or deputy and not just during the outbreak. However, they are advised to think carefully before doing this, as it may leave the person without the support they need.
Decisions made in lockdown
In relation to any decisions which need to be made in the present circumstances, and on which the attorney or donor would usually discuss with the donor or protected party, they should consider:
- how urgent the matter is and whether it would be appropriate and acceptable to delay the decision-making process;
- if the matter is deemed urgent, consider conducting a meeting by phone or video; and/or
- review any decision or written statements the donor has made in the past to determine whether it can assist in making the decision.
Provided then that the deputy or attorney has made the relevant decision, they can ask another person to carry that decision into effect.
Health and care providers
Being an attorney or deputy does not mean that you can tell a health or care provider they have to use their resources (such as care provision, particularly medical equipment or a doctor’s time) to help the donor.
The OPG has also reiterated its current guidance on gift giving and family care payments which remains unchanged, namely that gifts of a reasonable amount and customary in nature or to a charity with whom that person may have themselves made or been expected to make gifts can continue to be made without requiring court approval.
Deputies and attorneys are advised to continue monitoring the guidance which is updated regularly and to refer to it and associated practice notes where available.
Roman Kubiak is a partner and head of the market leading Contested Wills, Trusts and Estates team.
He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.
Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.
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