A Power of Attorney is a general term for a document a person can create in order to delegate decision making to someone else. Such documents include General Powers of Attorney, Enduring Powers of Attorney and Lasting Powers of Attorney.

With so many similar sounding names, it is hardly surprising that many of our clients don’t understand how these documents differ and interact with one another. This article intends to help clear up some of this confusion.  

General or Ordinary Powers of Attorney

General Powers of Attorney (also known as Ordinary Powers of Attorney) can only be made by a person who has capacity. They enable you to appoint another person (or people) to make decisions and act on your behalf.

General Powers of Attorney are helpful in circumstances where, for example, you are going on holiday, and you need someone to sign documentation and make decisions regarding the sale of your property whilst you are away or where you need someone to make decisions for you whilst you wait for your Lasting Power of Attorney to be registered with the Office of the Public Guardian.

These documents can be widely or narrowly drafted depending on the required purpose. They can, for example, be used to give someone authority to make specific decisions in relation to a particular matter or to give someone full authority to deal with all matters on a person’s behalf.

Perhaps the most important thing to bear in mind with General Powers of Attorney is that they can only be used whilst the person who created it retains mental capacity. This is why it is important to have an Enduring or Lasting Power of Attorney (see below) in addition to a General Power of Attorney because they survive incapacity.

Enduring Powers of Attorney

Enduring Powers of Attorney are the predecessors to Lasting Powers of Attorney. It has not been possible to make new Enduring Powers of Attorney since 1^st October 2007.

If you have an Enduring Power of Attorney, it can still be used by your Attorney(s) (the person or people you chose to make decisions on your behalf) but unlike Lasting Powers of Attorney, unless there is a specific restriction within the document, it can be used without having to be registered with the Office of the Public Guardian.

It is, however, important to note that there is a requirement to register an Enduring Power of Attorney if the person who created it has, or is starting to, lose capacity.

Existing Enduring Powers of Attorney cannot be amended, so for example, you cannot change the document to add a new Attorney. If such changes are required, then you will need to make a new Lasting Power of Attorney. If a person does not have capacity to do this, someone may need to apply to the Court of Protection to be appointed as a Deputy to manage the person’s property and financial affairs (see below).

Even if you are happy with your existing Enduring Power of Attorney, the document only allows your Attorneys to make decisions in respect of your property and finances and not health and care, and it is therefore likely to be sensible to consider putting in place a Health and Welfare Lasting Power of Attorney (see below) in addition to your Enduring Power of Attorney.

Lasting Powers of Attorney (LPA)

Lasting Powers of Attorneys replaced Enduring Powers of Attorneys. There are two different types – a Property and Financial Lasting Power of Attorney which allows you to appoint someone to deal with your property and finances, and a Health and Welfare Lasting Power of Attorney which allows you to delegate decision making in connection with your health and care, for example, what treatment you should receive and where you should live.

With Lasting Powers of Attorney, you decide who to appoint as your attorney(s), and the circumstances in which they can act.

Lasting Powers of Attorney can only be created if a person has the necessary mental capacity in accordance with the Mental Capacity Act 2005, but the power they confer continues even if the person who made the document loses capacity. 

Unlike Enduring Powers of Attorney, Lasting Powers of Attorney can only be used once they have been registered with OPG. However, a health Lasting Power of Attorney can only be used by the Attorney once capacity has been lost (even if registered).

Once created, a Lasting Power of Attorney cannot be amended. If changes are required, the existing document is likely to need cancelling (unless a partial revocation is sufficient, for example, to remove a specific Attorney) and a new one created which can be done as long as the person who wishes to make the Lasting Power of Attorney retains capacity.

If a person does not have the necessary mental capacity to make a Lasting Power of Attorney, then it is likely that an application may need to be made to the Court of Protection to appoint a Deputy (see below).

Deputyship Applications

Powers of Attorney are only available if a person has the mental capacity to set them up. If a person loses capacity without having put one of the above documents in place, these routes are effectively closed and family, friends or carers may then need to apply to the Court of Protection. This is because without a valid Enduring or Lasting Power of Attorney, there is no one who can legally make decisions on behalf of the person who has lost capacity.

It is therefore likely that a Court Order will be required to give authority to a person to make decisions on behalf of the incapacitated person in their best interests. The person appointed by the Court to act is known as a Deputy.

There are two main types of deputy appointment; one that enables someone to deal with the property and financial affairs of a person without capacity and one which relates to the appointment of a Deputy to make decisions about the welfare of the person without capacity. The former is the most common application with the latter only being required in the most difficult cases.

The powers of a Deputy are specified in the Court order appointing them. A Deputy can be appointed to deal with a single decision, for example, the sale of a home to pay for care, or to deal with broader decisions on an ongoing basis. Deputies are overseen by The Office of the Public Guardian.

DISCLAIMER: The information and opinions expressed in this article does not address individual requirements and is for informational purposes only. It does not constitute any form of legal advice and should not be relied on or treated as a substitute for specific advice relevant to your particular circumstances.