What are the different types of power of attorney?

Oower of attorney is a legal document that allows someone to make decisions for you, or act on your behalf, if you’re no longer able to or if you no longer want to make your own decisions. Here we take a brief look at the various types of power of attorney:-

Lasting Power of Attorney

Lasting Powers of Attorney (LPAs) were introduced by the Mental Capacity Act 2005 from 1st October 2007 and replaced the old style Enduring Power of Attorney as a method by which one person can appoint another to make decisions in advance of losing capacity.

There are 2 different types of LPAs:

• A Lasting Power of Attorney for Property and Financial Affairs is for decisions about finances, such as selling your house or managing your bank account; and
• A Lasting Power of Attorney for Health and Welfare is for decisions about both health and personal welfare, such as where you would live, your day-to-day care or medical treatment.

A Lasting Power of Attorney is a legal document that allows a person giving the power (‘the Donor’) to choose other people to make decisions on their behalf and (as the name implies) they continue to be valid after the Donor becomes incapable. It is ‘completed’ in advance of a person losing mental capacity. It is then ‘kept’ until needed although the Donor does not have to have lost mental capacity for the Lasting Power(s) of Attorney to be registered.  Once ‘registered’ with the Office of the Public Guardian a Property and Financial Affairs Lasting Power of Attorney will then allow the chosen individuals  to make decisions on the Donors behalf. There are no temporary or limited powers that can be used by the attorney during the registration process. A registered Health and Welfare Lasting Power of Attorney will only become effective upon the Donor losing mental capacity.

If you need to give someone trustworthy the power to manage either your property and financial affairs e.g. you can no longer manage all or part of your affairs, or when travelling abroad,  or your health and welfare decisions e.g. if an illness (such as Alzheimer’s) is likely to worsen, then contact Kew Law. Our private client department will ensure you know exactly what is involved and help you make an informed choice.

Remember you do not have to be old to need an LPA. Indeed one of the absolutely essential requirements is to register it with the government before it is used. The official government line is that this takes 6 weeks to register but it is often considerably longer despite the Government agency charging £82 for each attorney registered. Also remember you may need both types so do not wait until you actually need it because that may be too late.

An LPA will however help your financial affairs and personal decisions to be made quickly. Should you lose capacity and become unable to manage your own affairs then your loved ones will need to apply to the Court of Protection to be given the authority to manage them on your behalf. This can prove very expensive.

Enduring Power of Attorney

Lasting Powers of Attorney (LPAs) were introduced by the Mental Capacity Act 2005 from 1st October 2007 and replaced the old style Enduring Power of Attorney as a method by which one person can appoint another to make decisions in advance of losing capacity. However, an EPA executed by the person giving the power (‘the donor’) and all the attorneys before 1st October 2007 remains valid. Where attorneys have been appointed jointly and severally and an attorney has failed to execute his part of the form, the EPA will remain valid in favour of the other attorneys.

Registration of an Enduring Power of Attorney

In the event that the donor is or becoming mentally incapable, the EPA must be registered with the Office of the Public Guardian. If it is not registered, the power is the voided by the supervening incapacity of the donor. Registration also provides some safeguards against misuse, as various steps must be undertaken before the Office of the Public Guardian will register the EPA.

An attorney has a duty to apply to the Public Guardian for registration of the EPA as soon as practicable once he has reason to believe that the donor is or is becoming mentally incapable.

Unlike the new Lasting Powers of Attorney, once an application is made, then until the EPA is registered, the attorney has limited but potentially very useful powers to maintain the donor and prevent loss of the donor’s estate.

The effect of registration

Once an EPA is registered the attorney(s) have authority to act within the scope of the power, and the EPA cannot be revoked by the donor without the confirmation of the Court of Protection. The court has jurisdication to supervise, restrict, revoke or supplement the powers of attorney contained within the EPA, and in the event that the EPA is revoked, direct that a deputy be appointed. The attorney may also apply to the court for a substantial gift to be made and has standing to apply for a statutory will or for the court to exercise any other powers available to it.

Our services include:

• Registration of Enduring Powers of Attorney
• Advising Attorney’s on the scope of their powers
• Applications to the Court of Protection

Ordinary Power of Attorney

Alternatively known as a general power of attorney, this covers decisions about your financial affairs and is valid whilst you have mental capacity. It is suitable if you need cover for a temporary period or if you find it hard to get out or want someone to act for you. It only lasts for a limited about of time. The attorney can be given either general authority to act or limited powers.