A Power of Attorney is a legal document under which a person can appoint others to deal with their affairs and make decisions for them if, for any reason, they are unable to do so. They cease on the death of the donor. They can only be made if the donor is 18 or over and has mental capacity. There are 3 main types of Power of Attorney.
General Power of Attorney (GPA)
This is a simple document, covering financial matters only, which can be revoked at any time by the donor but becomes ineffective if the donor loses mental capacity.
Enduring Power of Attorney (EPA)
This was introduced specifically to cover situations where the donor loses mental capacity and therefore continues to be effective after the onset of mental incapacity if this ever occurs. Only documents fully completed prior to 1 October 2007 are legally valid. Prior to the loss of mental capacity (if it arises) it can be used in exactly the same way as a GPA. If mental capacity is lost (evidenced by medical advice) then the document must be registered with the Office of the Public Guardian (OPG) and a registration fee paid. Certain action has to be taken to advise the donor, Attorneys and certain family members that registration has taken place.
Lasting Power of Attorney (LPA)
From 1 October 2007 LPAs succeeded EPAs and can be either for Property & Financial Affairs or Health & Welfare or both. Before they can be used by the named Attorney(s), however, they must be registered with OPG and a fee paid (currently £110 for each although a remission or exemption may apply). Any number of Attorneys may be appointed although they must be 18 or over and not registered bankrupt at the time of appointment. Replacement Attorneys can be appointed, if required, to act only if the nominated Attorneys are unable or unwilling to act for any reason.
It will be necessary for someone to certify that the donor understands what they are are doing in signing the document and that no pressure has been placed on them to do so. The certificate provider must not be a family member of the donor or any Attorney but must have known the donor well for at least 2 years. Alternatively there is a list of qualified people who may provide the required certification. Up to 5 persons can be named to be notified in the event of registration and they need not be related to the donor. Since 1 July 2015 this is now optional.
Once registered with the Office of the Public Guardian the Attorney(s) will be able to do whatever the donor could have done either in relation to financial affairs (including making gifts and meeting dependants’ needs but subject to a restriction that they can only make such gifts or meet such needs as the donor was previously in the habit of doing) or in relation to any decisions regarding the donor’s place of residence and how they should be treated. Attorneys are not able to act for a donor in the capacity as a Trustee of any trust except in respect of the statutory trusts which apply to jointly owned property where the donor are entitled to a share in that property or the appointment of a new Trustee where the donor becomes incapable of acting.
There are a number of helpful booklets/guides and other information provided by the Office of the Public Guardian and it is recommended that you and your proposed Attorney(s) obtain copies. You can do this in writing to PO Box 15118, Birmingham, B16 6GX or by telephone on 0300 456 0300. You can also download forms and guides (and obtain other information) from the appropriate government website which is – www.gov.uk/government/organisations/office-of-the-public-guardian
If you need help with any or all of the formalities/forms we can provide this. Please contact Wills For All Ltd, 213 Findon Road, Worthing, West Sussex, BN14 0EP Tel. 01903 872088 or 01903 788330 or by e-mail to firstname.lastname@example.org.