A Power of Attorney is a legal document giving an appointed person(s) the power to deal with certain affairs of another. Such affairs may be financial or health related.
There are two primary types of Power of Attorney:
Ordinary Power of Attorney
This is the most basic Power of Attorney. It can be used to appoint a person or a number of people to manage the affairs of a specific individual on a temporary basis. The Power of Attorney can be drafted to grant general power to act in all matters relating to the individual or can be limited to specific functions, depending on the donor’s requirements. A power of attorney may end either at a specified time, or upon the request of the Donor at any time using a Deed of Revocation. Should the donor lose mental capacity, an Ordinary Power of Attorney is automatically revoked. For this reason a Lasting Power of Attorney is available which goes further and remains in place if the individual becomes unable to handle their own affairs (but it will then be registered with the Office of the Public Guardian).
Lasting Power of Attorney
Lasting Powers of Attorney replaced Enduring Powers of Attorney on 1 October 2007 following the enactment of the Mental Capacity Act 2005 . Before this date, an Enduring Power of Attorney could be granted by an individual to a trusted person to act on their behalf in the event that they were no longer able to manage their personal affairs and finances. Lasting Powers of Attorney are split of types:
- A Property and Financial affairs LPA is for decisions about finances, such as selling the Donor’s house or managing their bank account; and
- A Health and Welfare LPA is for decisions about both health and personal welfare, such as where to live, day-to-day care or receiving medical treatment.
A Lasting Power of Attorney dealing with property and financial matters can be used both before and after the Donor loses capacity whereas an Enduring Power of Attorney can only be used after the Donor loses capacity. A Health and Welfare Lasting Power of Attorney can only be used once the Donor has lost capacity.
A Lasting Power of Attorney must be registered with the Office of the Public Guardian before it can be used. If it is left unregistered, it will not give the Attorney any legal powers to make a decision for the Donor. The Donor can register the Lasting Power of Attorney while they have capacity. Otherwise the Attorney can apply to register it at any time.
Existing Enduring Powers of Attorney
An Enduring Power of Attorney that an individual granted before 1 October 2007 remains valid in respect of your property and affairs, whether or not it has been registered at the Court of Protection, provided that both the donor and the attorney has signed the document prior to 1 October 2007.
Hetts Solicitors deal with the various types of Power of Attorney on a day to day basis. For advice on this matter, please contact us.