Power of Attorney

By using a power of attorney, one person can authorise another to do things on their behalf, e.g. operate a bank account or sell a property. Powers of Attorney can be (a) general or (b) specific, i.e. confined to just one action, such as selling a specific property. Powers of attorney are also divided into 2 different types:

1. a normal power of attorney that only acts while the person has mental capacity

2. a lasting power of attorney – this can operate when the person making it has lost capacity. The previous version of a lasting power was called an enduring power of attorney. A lasting power of attorney is likely to be general, rather than specific, so that all of the person’s affairs can be taken care of by the recipient of the power, since the person giving the power can no longer do these things for himself.

Either type of power of attorney only operates while the person making it is alive. After death the power of attorney ceases to be of effect and the deceased person’s will takes effect or the rules of intestacy apply where there is no will. Clearly a lasting power of attorney needs to be made while the person giving it still has mental capacity. Often we see situations where someone has left it too late, have lost capacity and then they cannot grant a lasting power of attorney – the relatives must then apply to the Court of Protection for the power to deal with the person’s affairs. This is both slow and expensive, so it is far better to get a lasting power of attorney put in place ready to take effect the instant it is needed.

A situation in which you might need a lasting power of attorney could be a person suffering from Alzheimer’s, who can no longer make decisions for themselves. Another person would have to step in to pay bills, get care for the person, and manage the person’s affairs.

Often person appointed as attorney is a relative. However, it can also be a lawyer or other professional personnel who is more impartial. Sometimes it is better to have an impartial person involved to ensure no mis-handling occurs and to avoid family conflicts arising.

Our website offers several types of Power of Attorney documents. You will find General Power of Attorney templates, packs and guides on creating Lasting Power of Attorney documents, and Deed of Revocation of Power of Attorney templates.

The Lasting Power of Attorney document sets an individual up to look after property and financial affairs of a person. Health and personal welfare decisions are also taken care of under the Lasting Power of Attorney. Lasting Power of Attorney documents must be registered with the Office of the Public Guardian as soon as they have been created (this is different to the rules for enduring powers of attorney, which only need to be registered when they start to take effect, i.e. when the person giving the power loses mental capacity).

Since the person is wholly responsible for the grantor’s life and finances, there are safety procedures in place to make sure there is no misuse of the person’s property, or that their healthcare needs are not being ignored. In 2005 the law changed to ensure a more active role by the Office of the Public Guardian to safeguard against the possible misuse of a Power of Attorney.