Power of Attorney

Power of Attorney

A Power of Attorney is a legal document whereby a person gives another person or persons the power to take decisions with regard to their financial affairs and/or their health and personal welfare.

There are significant differences between powers of attorney in England (and Wales) and Scotland, including different terminology. In England the person giving another person the power to act on their behalf is called the "Donor"; in Scotland he/she is called the "Granter". The person or persons to whom the powers are granted are called "Attorneys". Both jurisdictions allow you to set up either a temporary power of attorney (for things like letting someone manage your bank account for you while you are travelling) or something more permanent (should you ever become unable to manage your affairs for yourself).

The different types of powers of attorney and related documents are described below.

England and Wales

Ordinary Power of Attorney

An Ordinary Power of Attorney is usually created for a set period of time in cases where the Donor is going abroad or is unable to act for some other reason and wishes someone else to have the authority to act on his or her behalf. The authority granted can be general or limited to specific affairs.

An Ordinary Power of Attorney will usually end either at a specified time or upon the request of the Donor at any time using a Deed of Revocation and will automatically be revoked if the Donor loses mental capacity. There is no requirement for an Ordinary Power of Attorney to be registered.

Enduring Power of Attorney

The Mental Capacity Act 2005 replaced Enduring Powers of Attorney (EPAs) with Lasting Powers of Attorney from 1 October 2007. From this date it is no longer possible to create a new EPA.

Existing but un-registered EPAs can continue to be registered after 1 October 2007.

Lasting Power of Attorney

Lasting Powers of Attorney (LPAs) were introduced by the Mental Capacity Act 2005 from 1 October 2007. They allow individuals to appoint Attorneys to look after their property and financial affairs (a Property and Affairs LPA) and also to make health and personal welfare decisions (a Personal Welfare LPA) when they lack the capacity to make these decisions themselves in the future. The Attorney(s) can only use the LPA after it has been registered with the Office of the Public Guardian.

There is a form for a Personal Welfare LPA and a separate form for a Property and Affairs LPA. If you are making both Lasting Power of Attorneys, each document must be registered separately.

Deed of Revocation

A Deed of Revocation can be used to cancel:

• an Ordinary Power of Attorney, at any time after the Power has been granted
• an Enduring Power of Attorney, at any time prior to registration of the Power and while the Donor is still mentally capable
• a Lasting Power of Attorney, at any time while the Donor still has mental capacity.

Scotland

General Power of Attorney

A General Power of Attorney is usually created for a set period of time in cases where the Granter is going abroad or is unable to act for some other reason and wishes someone else to have the authority to act on his or her behalf. The authority granted can be general or limited to specific affairs.

A General Power of Attorney will usually end either at a specified time or upon the request of the Granter at any time using a Deed of Revocation and will automatically be revoked if the Donor loses mental capacity. There is no requirement for a General Power of Attorney to be registered.

Continuing Power of Attorney

A Continuing Power of Attorney allows the Granter to appoint a legally authorised person to look after their property and financial affairs should they become incapable of doing so themselves at some point in the future. It remains valid after the Granter has become mentally incapable and must be registered to be effective.

A Continuing Power of Attorney may be revoked using a Deed of Revocation at any time, either before or after registration, while the Granter still has mental capacity or in the event they regain it.

Welfare Power of Attorney

A Welfare Power of Attorney allows a Granter to appoint Attorneys to make decisions about the health and welfare of the Donor in the event of mental incapacity. It may be revoked using a Deed of Revocation at any time, either before or after registration, while the Granter still has mental capacity or in the event they regain it.

'Deed of Revocation'

A Deed of Revocation can be used to cancel:

• a General Power of Attorney, at any time after the Power has been granted
• a Continuing or Welfare Power of Attorney, at any time (either before or after registration) while the Granter still has mental capacity or in the event they regain it.

More information and copies of the Power of Attorney forms can be purchased at various websites such as Clickdocsand Lawpackand can be downloaded for free from The Office of Public Guardian