Power of Attorney
An ordinary power of attorney
This is a legal way of giving someone else the power to manage your financial affairs when it is difficult for you to manage them yourself, perhaps because of a physical disability. Usually you appoint someone you trust, such as a close relative, friend, or solicitor as your 'attorney'. Nobody can simply 'take' a power of attorney. You have to 'donate' it willingly. The donor decides who to appoint as attorney, and can cancel the arrangement at any time.
Power of attorney only applies if you are fully aware of the implications of the arrangement. The power of attorney will come to an end if you become mentally incapable of managing your financial affairs.
Lasting power of attorney
A lasting power of attorney goes one step further than an ordinary power of attorney, because it carries on, or 'lasts', even after you have become unable to manage your affairs - whether temporarily or permanently, or because of an illness, disability or accident. Lasting powers of attorney have now replaced enduring powers of attorney, although valid enduring powers of attorney made before 1 October 2007 can still be used. No new enduring powers of attorney can be made after 1 October 2007 .
For a lasting power of attorney to be valid, you must fully understand the implications of the arrangement at the time of making it. A certificate provider will need to sign a certificate to say that you are aware of the implications and that nobody is pressurising you into making a lasting power of attorney. (A certificate provider is someone who has known you for at least two years, or someone with specialist skills in assessing if a person is incapacitated.) The attorney must be at least 18 years old and must not be bankrupt if appointed to make decisions about a person's property and money. More than one attorney can be appointed at the same time.
Your attorney cannot start making decisions on your behalf until the lasting power of attorney has been registered by the Office of the Public Guardian, who will make sure your attorney is aware of his or her duty to act in your best interests. The Office of the Public Guardian will charge a fee for registering the lasting power of attorney.
There are two types of lasting powers of attorney:
- Health and welfare lasting power of attorney; and
- Property and financial affairs lasting power of attorney.