Powers of Attorney - the facts

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 (EPAs) 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 EPA, provided the attorney registered the EPA at the Office of the Public Guardian (OPG).  Until that point, the EPA 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 EPA being registered.

Please note that EPAs only cover the donor’s property and finances – not their health and welfare: LPAs (see below) can cover either or both. A “living Will” may be a good substitute for a health and welfare LPA, however.

Lasting powers of attorney

From October 2007 onwards, the replacement for an EPA is a Lasting Power of Attorney (LPA).  This is a longer document than the enduring power of attorney was and therefore takes longer to complete, but is reasonably straightforward.  The prescribed forms can be downloaded from this website: http://www.justice.gov.uk/global/forms/opg/lasting-power-of-attorney/

There are two types of LPA, 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, an LPA is not effective (even as an ordinary power of attorney) unless and until it is registered at the OPG – the form to apply for registration is included in the LPA form itself.

I strongly recommend everyone to grant an LPA for property and financial affairs, certainly in favour of 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 LPAs, most people would be able to complete the prescribed forms perfectly well themselves.  I charge £200 + VAT for each LPA I prepare. The OPG charges £82 per LPA to register them.

Nelson McLean are a specialist law firm located in Tenterden, Kent. The author of this article can be contacted on 015780 767100.