Powers of Attorney

Powers of Attorney are documents that allow others (called attorneys) to make decisions on behalf of others (called donors). 

Powers of Attorney take many forms. The most common that are encountered are:

• Lasting Powers of Attorney (LPAs)
• Enduring Powers of Attorney (EPAs)
• General Powers of Attorney
• Specific Powers of Attorney and Trustee Powers

Lasting Powers of Attorney (LPAs)

An LPA is a legal document that allows an individual to appoint someone to make decisions on their behalf during their lifetime. 

The LPA allows one or more attorneys to continue making decisions on the donor’s behalf, even if the donor has lost mental capacity. 

Having a Lasting Power of Attorney in place offers security and peace of mind and can help you plan for the unexpected. 

There are two types of LPAs:

Property and Finance

This LPA deals with financial decisions, ranging from the ability to sell a house to accessing bank accounts, paying bills and making investment decisions. Unlike a Health and Welfare LPA, a Property and Finance LPA can be drafted in a way that allows decisions to be made if the donor is physically (and not mentally) incapacitated. 

Health and Welfare

This LPA deals with a wide variety of health and welfare decisions such as whether to refuse or consent to life-sustaining treatment, care provision and where the donor will live.

LPAs must be registered with a government department called the Office of the Public Guardian (OPG) before they are recognised as legally valid. This is even if the donor is mentally capable. Whilst LPAs in relation to financial matters are now the most common, LPAs for health and welfare should always be considered too.

If an LPA is not in place and an individual loses mental capacity to make decisions it can be very difficult for loved ones to step in and help. There is no automatic right, even for a spouse or partner, to be able to pay bills, access finances or sell property. 

In these circumstances usually the only way to help involves a lengthy and expensive application to the Court of Protection to get the Court’s permission to assist. An LPA avoids all this complication and crucially allows the individual to choose for themselves who would make decisions for them.

Enduring Powers of Attorney (EPAs)

An EPA is similar to an LPA but relates solely to financial matters. EPAs were replaced by LPAs. Although EPAs can no longer be created, those executed before 1 October 2007 remain valid. 

If the donor becomes incapable or is becoming incapable of managing their own affairs the EPA has to be registered with the OPG before it can continue to be used fully. Unlike an LPA the EPA can only be registered once the donor starts to lose mental capacity. Once registered, the EPA remains in operation despite the donor not being capable of managing their own affairs.

General Powers of Attorney

A General Power of Attorney is useful for those who are temporarily unable to manage their affairs, despite being mentally capable - for example, if the donor is going abroad and will not be contactable or is physically incapable of dealing with matters during a hospital stay. A General Power of Attorney is only effective if the donor has capacity – if the donor should lose capacity they become invalid automatically. 

Special Powers of Attorney

Specific Powers of Attorney are, as the name suggests, Powers of Attorney by which the donor authorises the attorney to deal with a certain specific matter - for example, to sell a particular house or shareholding. As with general powers, these become invalid automatically if the donor becomes mentally incapable.

Trustee Powers

Trustee Powers can be given by trustees of trusts and even a personal representative of a deceased person’s estate (like an executor administrator) to allow others to execute transactions for them in that capacity. If a trustee or personal representative is away abroad for example it would allow the trust or estate to be administered in their absence.

Our experienced team deal with the creation of and, where applicable, the registration of all types of Powers of Attorney. We can advise on which type of Power of Attorney is most suited to your circumstances and tailor them specifically to your needs. We can also advise donors and attorneys as to their rights and responsibilities.

Click below to download our Power of Attorney document: