A power of attorney is a document signed by an individual (the donor) which gives authority to another individual, or individuals (the attorneys) to act on the donor’s behalf – usually in relation to financial affairs and property.
Why do I need a power of attorney?
The society we live in is becoming increasingly complex – just trying to open up a bank account is much harder and more difficult than it was, say, 30 or 40 years ago. But for many people the problems really start when a loved one becomes incapable, whether temporarily or incapable, of looking after their own affairs. Imagine if, as a married person, your money is kept in an account in the sole name of your spouse – how can you easily release it without their permission. In the absence of a power of attorney the answer is that you can’t – at least not without some difficulty. Equally, if you run a business, what happens when you’re no longer around to make decisions or write cheques? A loved one for trusted friend can resolve these issues – but that requires an application to the court of protection, and that takes money and time.
Lasting Powers of Attorney
The Lasting Powers of Attorney [LPA] replaced the much simpler Enduring Powers of Attorney [EPA] as of 1st October 2007. Existing Enduring Powers of Attorney remain valid, but it is no longer possible to make a new EPA.
Lasting Powers of Attorney come in two forms – Property and Affairs, and Personal Welfare. The first authorises the attorney to make decisions concerning the donor’s property and affairs; the second enables the attorney to make decisions about matters concerning the donor’s personal welfare, such as where he or her lives, is cared for and the healthcare he/she receives.
A donor can make either or both, but before the attorney has any authority the documents must be registered with the Public Guardianship Office in London. There is a registration fee payable of £150 per document.
The advantage of Lasting Powers of Attorney is that they are not revoked by a subsequent loss of capacity. If the donor becomes unable to deal with their financial affairs, the attorney can carry on and manage these on the donor’s behalf.
What are the alternatives?
General Powers of Attorney s10 Powers of Attorney Act 1971
These are quite straightforward authorisations which can be used for wide ranging use or specific periods or events, such as the sale of a property. They are ideal, for example, where someone has to spend time abroad and needs to entrust the management of business or financial interests to their spouse. They can only be used for the management of financial affairs and cannot cover personal welfare. The attorney can do anything he thinks fit in relation to the donor’s property and affairs.
General Powers do not give attorneys any powers to carry out the donor’s role as a trustee. General Powers automatically end if the donor loses mental capacity; otherwise, the power remains valid until it is revoked (best done in writing), although it is common for them to be granted for a specific period to cover, for example, absence abroad.
Trustee Powers of Attorney (s25 Trustee Act 1925)
These are similar to General Powers, but can be used specifically in connection with trusts of which you are a trustee. They cannot last for more than 12 months.
Tim Bishop is senior partner of Bonallack and Bishop – Solicitors in Salisbury whose wills and probate solicitors have considerable experience of drafting a lasting power of attorney for clients. Contact them on 01722 422300 or alternatively for more information about their services pay a visit to the website http://solicitorsinsalisbury.co.uk.