According to these rules, only certain individuals are authorised to certify copies as originals. This group includes the donor themselves, solicitors, notaries public, and stockbrokers. It is important to highlight that regulated financial advisers are absent from this list of authorised certifiers.
In July 2020, the OPG introduced the “use an LPA” service, which allows individuals to confirm the validity of an LPA online. This service enables authorised organisations, such as banks, investment providers or healthcare providers, to verify whether an LPA is registered with the OPG and therefore legally valid. It provides a method for institutions to ensure that they are dealing only with appointed attorneys who have the legal authority to act on behalf of the donor.
The service was initially introduced for LPAs registered starting from July 2020. However, as of March 4 2021, its coverage was expanded to include LPAs registered on or after September 1 2019.
Upon registration of a new LPA, both the attorneys and the donor will receive an activation key, which enables them to establish an online account and link the LPA to it.
Subsequently, they can generate an access code to share with relevant organisations. This code allows these entities to access an online summary of the LPA and verify its authenticity. While usage of the service is increasing, not all organisations accept it as an alternative to a certified copy of an LPA.
The OPG has expressed interest in extending the availability of the service to cover LPAs registered before September 2019. However, they have highlighted the need for additional analysis and assessment before reaching a final decision on this matter.
LPAs and DFMs
Attorneys can seek professional advice when carrying out their duties, such as consulting with lawyers, financial advisers, or other experts to make well-informed decisions. However, as a general rule, attorneys cannot delegate the decision-making authority that has been entrusted to them to another person. This means they must personally make the decisions they were appointed to handle.
The only exception to this rule is if the donor has explicitly authorised such delegation in the LPA document. Without this specific authorisation, the responsibility to make decisions remains solely with the appointed attorneys.
This can create complications when it comes to appointing the services of a discretionary fund manager. Engaging a DFM involves allowing them to make investment decisions on behalf of the donor, which could be seen as delegating decision-making authority.
While the donor retains mental capacity, they can appoint a DFM without any issues, allowing the DFM to manage investments and make decisions on their behalf. Problems can arise if the donor subsequently loses capacity. If the LPA does not contain an explicit provision authorising the attorney to delegate investment decisions to a DFM, the appointed DFM might be unable to continue making discretionary investment decisions.
