A power of attorney is a legal document by which one party (the donor) gives another person or persons (the attorney/ies) the power to act on behalf of and in the name of the donor. It may be with regard to their financial affairs and/or their health and personal welfare.
For Powers of Attorney used in the context of a Company, please see the article “Signing under a Power of Attorney” dated 3 January 2007.
Powers of attorney are subject to statutory rules set out in the Powers of Attorney Act 1971 (as amended), the Mental Capacity Act 2005, section 25 of the Trustee Act 1925 (as amended by the Trustee Delegation Act 1999) and the Trusts of Land and Appointment of Trustees Act 1996 (which apply to trustees).
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 in England and Wales and related documents are described below.
Ordinary Power of Attorney
An Ordinary Power of Attorney is usually created for a set period of time. For example, 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 end either at a specified time or upon the request of the Donor at any time using a Deed of Revocation. It 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. However, 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. Both forms of LPAs are set out in different formats and where the same Donor has both forms, they must be registered separately.
Deed of Revocation
A Deed of Revocation is 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.