Power of Attorney FAQ - United Kingdom-Wales

From LawDepot Law Library

Jump to: navigation, search

Contents

General Information

What is a Power of Attorney?

A Power of Attorney is a document in which one person (the Donor) appoints another person (the Attorney) to act for him or her. There are many reasons why you might decide to use a power of attorney. For example, if you are going to be out of the country for a lengthy period of time, you might want someone to do your banking while you are gone. If you are approaching old age, you may want to give a Power of Attorney to a person you trust so that he or she can manage your property for you.

What different types of powers of attorney are used in England and Wales?

In England and Wales there are 2 main types of powers of attorney. The first type is called an ordinary or general power of attorney. With ordinary powers of attorney, Donors can appoint attorneys to look after financial/property matters only. Unless otherwise specified, an ordinary power of attorney will come to an end when the Donor loses capacity.

The second type of power of attorney is called a Lasting Power of Attorney (LPA). With an LPA, Donors can appoint attorneys to act in either personal welfare matters or property matters. An LPA only becomes effective once it has been registered. Provided the LPA was created while the Donor was mentally capable, the LPA can be registered at any time. The LPA replaced the Enduring Power of Attorney in October 2007.

What is the difference between an Enduring Power of Attorney and a Lasting Power of Attorney?

An Enduring Power of Attorney (EPA) is a type of power of attorney which allows the Donor to appoint someone to act on the Donor’s behalf in matters that relate to the Donor’s property and affairs. The EPA remains valid even if the Donor later becomes mentally incompetent. In contrast, a Lasting Power of Attorney (LPA) allows the Donor to appoint someone to act on the Donor’s behalf in matters that relate to the Donor’s property and affairs and/or the Donor’s welfare.

If the Donor becomes unable to make financial decisions, the Enduring Power of Attorney must be registered before it can be used or, if it is already in use, before it can continue to be used. Lasting Powers of Attorney will become effective as soon as they are registered and they may be registered any time after completion.

Lasting Powers of Attorney replaced Enduring Powers of Attorney in October 2007 when the Mental Capacity Act 2005 came into force. However, Enduring Powers of Attorney which were created before October 2007 will still be valid.

Do I have to replace my Enduring Power of Attorney with an LPA?

You do not have to replace your Enduring Power of Attorney. Enduring Powers of Attorney will continue to be effective if they were created before October 2007. However, you should note that an Enduring Power of Attorney does not provide the same level of protection as an LPA. If you have not yet registered your Enduring Power of Attorney, you may wish to revoke it and replace it with an LPA.

What is the difference between an LPA for Property and Affairs and an LPA for Personal Welfare?

An LPA for Property and Affairs allows your Attorney to manage your property and affairs. This may include buying or selling your home, managing your investments or carrying on a business.

An LPA for Personal Welfare allows your Attorney to make health and welfare decisions for you. This may include consenting to certain medical treatment or making decisions about where you live.

Your Property and Affairs Attorney can make decisions on your behalf while you still have capacity as well as when you lack capacity. Your Personal Welfare Attorney can only make decisions on your behalf when you lack the capacity to make them yourself. Both powers of attorney only take effect when they have been registered with the Office of the Public Guardian.


Will a Power of Attorney still be valid after the Donor dies?

NO.

The Donor

Who is the Donor?

The Donor is the person who needs someone else to act for him or her. The Donor must be an adult. The Donor must be capable of making his or her own decisions at the time the Power of Attorney is executed (signed).

What does it mean to lack capacity?

A Donor lacks capacity in relation to a matter if at the relevant time the Donor is unable to make a decision for himself/herself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

The Attorney

Who is the Attorney?

The person appointed by the Donor is called the Attorney. The Attorney is the person who acts for the Donor.

Who is the Personal Welfare Attorney?

A Personal Welfare Attorney is the person the Donor chooses in an LPA to make personal welfare decisions on the Donor’s behalf. Examples of personal welfare decisions may include:

  • deciding where the Donor lives;
  • choosing whether or not the Donor receives home care; or
  • determining whether or not the Donor will consent to certain health care or medical care.

Who is the Property and Affairs Attorney?

A Property and Affairs Attorney is the person the Donor chooses in an LPA to manage the Donor’s property and finances. Examples of management duties may include:

  • paying the Donor’s bills and expenses;
  • collecting benefits and other income of the Donor;
  • making limited gifts on behalf of the Donor;
  • dealing with all tax related matters of the Donor; or
  • selling or renting out any of the Donor’s real estate interests.

Does the Attorney have to be a lawyer?

No, there is no need for the Attorney to be a lawyer. (See below for Attorney qualifications.)

What qualifications does an Attorney need to have?

The Attorney must be a capable adult. The Attorney cannot be an undischarged bankrupt. The Attorney should not be the owner, operator or employee of a nursing home or extended care facility in which the Donor is a resident.

What qualities should I look for in an Attorney who will be managing my property?

Your Attorney must be someone whom you trust completely. In addition, remember that your Attorney will have complete authority to deal with your financial and legal affairs (subject to any limitations or restrictions specified in your Power of Attorney). You should ensure that the person you choose has adequate financial management skills and sufficient time to handle your affairs properly. Your Attorney must be available when required, be able to objectively make decisions and be able to keep accurate financial records.

What are the responsibilities of my Attorney?

Your Attorney has the following responsibilities:

  • to act in your best interest;
  • to keep accurate records of dealings/transaction undertaken on your behalf;
  • to act for you with the utmost good faith and to avoid situations where there is a conflict of interest; and
  • to keep your property and money separate from their own.

Is it okay to appoint a relative as Attorney?

Yes, people often appoint relatives as Attorneys.

Can my Attorney also be a beneficiary in my will?

Yes.

What happens if I appoint my spouse or civil partner as my Lasting Attorney but our relationship is later dissolved or annulled?

If you have appointed your spouse or civil partner as your Attorney and your relationship is subsequently dissolved or annulled, then your LPA will usually cease. However, your LPA will not come to an end if:

  • you have appointed a Replacement Attorney;
  • you have appointed Attorneys to act together and independently; or
  • you have placed a condition in your power of attorney that allows your spouse or civil partner to continue to act even if the relationship comes to an end.

What is a Replacement Attorney?

A Replacement Attorney is a person that the Donor can appoint in an LPA should the Attorney be unable or unwilling to act on the Donor’s behalf. The Donor is not obligated to appoint a Replacement Attorney. If the Donor does choose to appoint a Replacement Attorney, the Donor should set out the circumstances in which the Replacement Attorney can act. If the Donor does not set out the circumstances, the Replacement Attorney will automatically replace the first attorney who needs replacing.

Should I pay my Lasting Attorney a fee to act as my Attorney?

It is up to you to decide whether your Lasting Attorney should receive payment for acting as your Attorney. If you are going to pay your Attorney, you should specify any agreed upon fees.

If I am creating an LPA, can I appoint one Attorney to make property and affairs decisions for me and another Attorney to make welfare decisions for me?

Yes, you can appoint different Attorneys for each type of LPA.

If I create an LPA, are there any principles my Attorney must follow?

Your Attorney must follow the principles set out in the Mental Capacity Act 2005. These are:

  • A presumption of capacity - every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise;
  • The right for individuals to be supported to make their own decisions - people must be given all appropriate help before anyone concludes that they cannot make their own decisions;
  • That individuals must retain the right to make what might be seen as eccentric or unwise decisions;
  • Best interests - anything done for or on behalf of people without capacity must be in their best interests; and
  • Least restrictive intervention - anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms.

Can my Attorney choose to stop acting on my behalf?

Your Attorney may choose to stop acting as your Attorney. If your LPA has not been registered, then your Attorney can send you formal notice that he/she wishes to stop acting as your Attorney. If your LPA has already been registered, then your Attorney will have to send a formal notice to both you and the Office of the Public Guardian that he/she wishes to stop acting as your Attorney.

What are Joint or Joint & Independent Attorneys?

Sometimes a Donor will want to appoint two Attorneys. In that case the Donor must decide whether the Attorneys will be 'joint' Attorneys or 'joint and independent' Attorneys. Joint Attorneys must act together. They must both agree before any action can be taken, and they must both take the same action at the same time. If one is absent, no action can be taken. Joint and independent Attorneys can act together or individually. Either one can take an action without consulting the other. If one is absent, the other can still act. Please note that in the LPA, the term "joint and independent" is referred to as "together and independent" and the term "joint" is referred to as "together".

Place and Time

What is "Jurisdiction"?

A jurisdiction is a place that has its own laws. It is a territory with boundaries, such as a state or a province. For example, California is a jurisdiction in the United States, Ontario is a jurisdiction in Canada, Scotland is a jurisdiction in the United Kingdom and Queensland is a jurisdiction in Australia.

What is the "Governing Law"?

A Power of Attorney is governed by the law of the jurisdiction where the actions of the Attorney will be performed. Normally, this is the place in which the property of the Donor is located. Therefore, it is not a good idea to appoint an Attorney who resides in a different jurisdiction, unless the property or assets you want the Attorney to deal with are also in the different jurisdiction. If you anticipate that your Attorney will be acting in more than one jurisdiction, you should probably make separate Powers of Attorney for each jurisdiction.

Examples:

  • If your bank accounts and other property are located in the jurisdiction where you live, you will want to appoint an Attorney who lives in the same jurisdiction.
  • If you live in one jurisdiction but have a bank account or other property someplace else, and you want an Attorney to deal with that property, you will want to choose the place where the property is located as the governing law, and appoint an Attorney who is located in (or is willing to travel to) the same jurisdiction as the property.

Is the LPA legally binding outside of England and Wales?

An LPA made in England and Wales is not legally binding for use in other countries (including Scotland and Northern Ireland). It is up to institutions (such as hospitals and other health care facilities) in other countries to decide whether to recognise the LPA.

When does a Power of Attorney start?

A general Power of Attorney starts immediately upon execution. A Lasting Power of Attorney starts when it is registered with the Office of the Public Guardian.

How/when does a Power of Attorney end?

An ordinary Power of Attorney ends automatically when the Donor becomes mentally incapacitated or dies. A Lasting Power of Attorney ends automatically when the Donor dies. As long as you are mentally competent, you may revoke your Power of Attorney at any time by notifying your Attorney (in writing) that the Power is revoked and destroying the original Power of Attorney. If you have a Lasting Power of Attorney you should also advise the Office of the Public Guardian so that they can update the LPA register to reflect the change. Otherwise, a Power of Attorney continues in effect indefinitely, unless the document specifies an end date.

Can I revoke my Power of Attorney after I have become incompetent?

A person who is incompetent cannot revoke a Lasting Power of Attorney. However, an ordinary Power of Attorney is automatically revoked when the Donor is found to be incompetent.

How do I revoke my Power of Attorney?

If you have an Ordinary Power of Attorney you can revoke, or cancel, a Power of Attorney by giving your Attorney a written notice saying that his or her power has ended. Also, you may make a new Power of Attorney that states your previous Power of Attorney is now revoked (but you must still notify the previous Attorney of the revocation). Third parties (e.g., people or organisations that have been dealing with the Attorney) must also be notified.

If you have a Lasting Power of Attorney you must advise your Attorney(s) that you are revoking their power. Additionally, if your Lasting Power of Attorney is registered, you must also advise the Office of the Public Guardian so that they can update the LPA register to reflect the change. Third parties (e.g. people or organisations that have been dealing with the Attorney) must also be notified.

Please note that if you fail to inform your Attorney of the revocation, your Attorney can legally continue to make decisions on your behalf.

Can I purchase a revocation form from LawDepot?

Yes, you can purchase a revocation form by clicking here.

Powers

Should I add conditions/restrictions to my LPA?

Unless you specify otherwise, your Attorney will be allowed to make almost any decision you could make regarding your property and affairs (for LPAs for Property and Affairs) or your personal welfare (for LPAs for Personal Welfare). However, your Attorney will always be obliged to act in accordance to the principles set out in the Mental Capacity Act 2005. Your Attorney must always act in your best interests.

What should I consider when making conditions or restrictions in my LPA?

You should carefully consider how to word your restrictions and conditions. Ensure that any conditions or restrictions are straightforward, easy to figure out and capable of being carried out. Remember that conditions and restrictions are meant for your Attorney to follow when making decisions on your behalf. They are not meant to be statements to people other than your Attorney to follow.

What is "life-sustaining treatment"?

Life-sustaining treatment refers to any treatment which in the view of a health care provider, is necessary to sustain the life of the person concerned. Life sustaining treatment may include any of the following:

  • day-to-day medical treatment;
  • major surgical operations;
  • artificial nutrition and hydration; or
  • organ transplantation.

Whether or not the treatment is considered life-sustaining will be determined by the situation in which the treatment is given.

Do I need to include any guidance for my Attorney in my LPA?

You do not have to include guidance for your Attorney. However, if you do include guidance, your Attorney is obliged to consider the guidance when making any decisions on you behalf.

Is there anything that my Lasting Attorney is not allowed to do on my behalf?

Your Attorney cannot do any of the following on your behalf:

  • consenting to marriage or civil partnership;
  • consenting to a decree of divorce being granted on the basis of two years’ separation;
  • consenting to a dissolution order being made in relation to a civil partnership on the basis of two years’ separation;
  • consenting to place a child up for adoption or consenting to the adoption of a child;
  • consenting to sexual relations;
  • giving you medical treatment for a mental disorder or consenting to you being given medical treatment for a mental disorder if your treatment is regulated by Part 4 of the Mental Health Act 1983;
  • deciding to vote.

More information on these exclusions is available in the Mental Capacity Act 2005, sections 27 - 29. You can view the legislation by clicking here.

Notification

What is notification and why is it important?

Notification is a process where you select individuals who are to be alerted when you or your Attorney wish to register your LPA. The people who have been notified are then given the opportunity to object if they have any concerns about the LPA being registered (for instance, if they think you were unduly pressured to make the LPA). In this way, the notification process is used as a safeguard against wrongful use of your LPA.

How many people can I choose to be notified in my LPA?

At the time you make your LPA, you can choose up to 5 people to be notified. It is best to name as many individuals as you can in case one or more of the individuals cannot be notified.

Who should I choose to be notified in my LPA?

You can choose anyone to be notified, however the people that you select should be people who know you very well (e.g. family and friends). You should select individuals who know you well enough that they will be able to raise any concerns they have when your LPA is registered.

What if I do not know anyone that can be notified?

If you cannot name anyone to be notified, then you must have two separate Certificate Providers complete Section B of the LPA form.

Certificate Provider's Statement

What is the Certificate Provider’s Statement?

The Certificate Provider’s statement is set out in Part B of the LPA. Certificate Providers must read and discuss the contents of your LPA with you (preferably with no one else present). They must then certify that in their opinion you understand the purpose of the LPA and you understand the scope of authority that you are giving to your Attorney. Certificate Providers must also state that in their opinion there is no fraud or undue pressure being used to induce you to create the LPA and that there is nothing else preventing a valid LPA from being formed.

Do I require a Certificate Provider’s Statement?

Yes, everybody making an LPA requires a Certificate Provider’s Statement. Your LPA will not be valid and cannot be registered unless there is a Certificate Provider’s Statement.

Who can be a Certificate Provider?

The Certificate Provider can be an individual who has known the Donor for at least two years or a skills-based Certificate Provider. Skills-based Certificate Providers include:

  • registered healthcare professionals (including a GPs);
  • solicitors, barristers or advocates;
  • registered social workers;
  • Independent Mental Capacity Advocates; or
  • individuals who, because of their relevant professional skills and expertise, considers themselves able to provide the certificate.

Who cannot be a Certificate Provider?

The Certificate Provider cannot be any of the following:

  • a member of the Donor or Attorney’s family;
  • a business partner or paid employee of the Donor or the Attorney;
  • an Attorney appointed in this form or another LPA or any Enduring Power of Attorney made by the Donor;
  • the owner, director, manager, or an employee of a care home in which the Donor lives or their family member or partner; or
  • a director or employee of a trust corporation appointed as the Attorney in the LPA.

When can an LPA be used?

An LPA cannot be used until the document has been registered with the Office of the Public Guardian.

Registration

When should my LPA be registered?

Your LPA can be registered at any time after it has been completed and properly signed. The advantage to having it registered right away is that the LPA can be used by your Attorney whenever it is needed. If a long time passes before your LPA is registered, your circumstances may have changed and your LPA may no longer reflect your needs. If this is the case, you will not be able to modify your signed and completed LPA. You will have to create a new LPA.

Who can register my LPA?

Either the donor or the donor’s Attorney(s) may apply to register the LPA as long as the proper forms have been completed and all people who are to be notified have been notified.

What forms should I use to register an LPA?

You require the form LPA001: Notice of intention to apply for registration of an LPA to notify the individuals named in the LPA of your intention to register the LPA. You also require LPA002: Application to Register an LPA which must be sent to the Office of the Public Guardian.

Who can object to my LPA being registered?

You, your Attorney and the individuals you have selected to be notified are allowed to object to your LPA being registered.

What are the prescribed grounds for objecting to the registration of a LPA?

The prescribed grounds for objecting to the registration of a LPA are as follows:

  • the powers created by the LPA are not valid (e.g. the person objecting does not believe the Donor had capacity to make an LPA);
  • the power created by the LPA no longer exists (e.g. the Donor revoked it at a time when he/she had capacity to do so);
  • fraud or undue pressure was used to induce the Donor to make the LPA; or
  • the Attorney proposes to behave in a way that would contravene his/her authority or would not be in the Donor’s best interests.

Any objection that is raised will need to be supported with factual evidence.

Signing Details

What are the requirements for signing, witnesses and notarisation for my Ordinary Power of Attorney?

Different jurisdictions have different signing requirements (witnesses, etc.) for Powers of Attorney, which may depend on how it is intended to be used. Some financial institutions have their own requirements for non-enduring Powers, so it is a good idea to contact them for advice prior to signing.

What does it mean to "execute" a document?

When a person "executes" a document, he or she signs it with the proper "formalities". For example: If there is a legal requirement that the signature on the document be witnessed, the person executes the document by signing it in the presence of the required number of witnesses.

How should I sign my Ordinary Power of Attorney document?

To be valid, you must sign the document with your usual cheque signing signature. You should also initial each page of the document. The signing and the initialing of the pages must occur in the presence of your notary or witness(es).

After you have signed and initialed your document in front of your notary or witness(es), your notary or witness(es) must sign on the applicable page of the Power of Attorney and should initial each page. This must occur in your presence.

Does it matter where my Ordinary Power of Attorney document is signed and witnessed?

If your document will be used in a different jurisdiction - but not in a foreign nation - there is no problem with having the document signed and witnessed where you live, rather than where the document will be used. The witnessing requirements (number of witnesses required, whether or not notarisation is needed) should still be those of the place where the Power of Attorney will be used, however. (Not applicable to Lasting Powers.)

What if my Power of Attorney will be used in a foreign nation?

If your document is intended to be used in a foreign nation, you may have to have it "authenticated" or "legalised". This is a process whereby a government official (e.g., the Secretary of State, the Foreign Office, the Office of the Attorney General - depending on where you live) certifies that the signature of the authority (e.g., notary or solicitor) on your document is authentic and should be accepted in the foreign nation. For more information about document authentication and legalisation, contact the local consulate/embassy of the foreign country your document will be going to, or one of the following government web sites:

United States: http://www.state.gov/m/a/auth/

United Kingdom: http://www.fco.gov.uk/en/about-us/what-we-do/services-we-deliver/legal-services/legalisation/

Canada: http://www.gov.on.ca/MBS/english/mbs/ods/authent.html (web site is for Ontario - other provinces contact the provincial Office of the Attorney General)

Australia: http://www.dfat.gov.au/brisbane/index.html

Other Considerations

Do I have to register my Power of Attorney with a Land Titles Office?

A Power of Attorney given for the purpose of buying or selling real property (land) should be registered.