Tuesday 16 February 2010

Powers of attorney

Ordinary powers of attorney

An ordinary power of attorney gives someone (the attorney) the power to act on behalf of someone else (the donor) subject to any restrictions or conditions contained in the power of attorney. A general power of attorney gives the attorney power over all of the donor’s affairs, except where the donor is a trustee and a trustee power of attorney is required.

The problem with any ordinary power of attorney (whether general, trustee, or otherwise) is that it is only effective for so long as the donor is both alive and mentally capable of managing their own affairs. If they die, then (as with all other types of powers of attorney) the authority granted to the attorney under the power ceases. Also, if the donor becomes mentally incapable of managing their own affairs, the authority granted to the attorney under an ordinary power of attorney ceases.

Enduring powers of attorney

Enduring powers of attorney can no longer be made, but could be made up to October 2007. If made before that date, then the distinction between them and an ordinary power of attorney is that, even if the donor became mentally incapable, the attorney could still continue to act under the power of attorney, provided the attorney registered the enduring power of attorney at the Public Guardian’s Office. Until that point, the power of attorney operated as an ordinary power of attorney, but provided it was in the correct form and granted before October 2007, its effectiveness could “endure” beyond the donor’s mental incapacity, subject to the power being registered.

Lasting powers of attorney

From October 2007 onwards, the replacement for an enduring power of attorney is a lasting power of attorney. This is a longer document that the enduring power of attorney was and therefore takes longer to complete, but is reasonably straightforward. The prescribed forms can be downloaded from the Public Guardian’s website at www.publicguardian.gov.uk

There are two types of lasting power of attorney, with separate forms for each – one for “property and financial affairs” and another for “health and welfare”. This is because one might want different people as attorneys for these different aspects, but it does mean doubling up on the form-filling and on the registration fees.

Once granted, a lasting power of attorney is not effective (even as an ordinary power of attorney) unless and until it is registered at the Public Guardian’s Office – the form to apply for registration can be downloaded from the same website.

I strongly recommend everyone to grant a lasting power of attorney, certainly to their spouse/civil partner and possibly (depending on age and family circumstances) to some or all of their children.

Whilst I am happy to help in preparing a lasting power of attorney, most people would be able to complete the prescribed form perfectly well themselves. I can, perhaps, be more useful in registering a lasting power of attorney but again the forms for this are fairly straightforward and do not require specialist legal advice.

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