Power of Attorney

A Power of Attorney form is a legal document in which a person gives another person or persons the power to take decisions regarding their financial affairs and/or their health and personal welfare.

There are two main types of Power of Attorney UK legal institutions recognise. An Ordinary Power of Attorney or General Power of Attorney form is for temporary use whilst the Donor is unavailable. Continuing, Lasting power of attorney forms (which replaced Enduring Power of Attorney) are for use when the Donor has lost the capacity to manage their own affairs.

 

Further Information

A Power of Attorney is a legal document whereby a person gives another person(s) written authorisation to make decisions on their behalf with regard to their financial affairs, their health and personal welfare or some other legal matter. The people to whom the written authorisation or 'powers' are granted are called 'Attorneys'.

There are two types of Power of Attorney that UK legal institutions recognise:

(1) Temporary – those which are created for a set period of time or for a specific purpose and end either at a specified time or upon the request of the person granting it. These are called Ordinary or General Powers of Attorney and they automatically come to an end if you lose mental capacity. If you have a physical illness or an accident resulting in physical injury or you are going abroad and you want someone else to look after your affairs a temporary power of attorney can be useful.

(2) Permanent - those which allow someone else to manage your legal, financial and health affairs should you lose capacity in the future. If you have been diagnosed as having, or if you think that you may develop, a mental illness, for example, severe schizophrenia, or a degenerative brain disease leading to mental incapacity, for example, Alzheimer’s disease, and you want someone else to manage your financial affairs and/or your health and welfare either now or in the future. This can include paying bills, collecting pensions and other money due to you or dealing with bank or building society accounts, subject to any restrictions or conditions you might want to include. It can only be used after it has been registered at the Office of the Public Guardian (OPG).

The laws governing powers of attorney in England and Wales are different from those in Scotland and different forms are required. We offer versions of both temporary and permanent powers of attorney for both jurisdictions.

In England and Wales permanent power of attorney is granted using Lasting Power of Attorney forms. In Scotland the equivalent permanent powers of attorney are Continuing or Welfare Power of Attorney forms.

The Power of Attorney form packages below contain all the forms and guidance material that you need in order to make and then apply to register a Lasting Power of Attorney (including Continuing and Welfare). There is one group which includes the Power of Attorney form for the jurisdiction of England and Wales, and one group for Power of Attorney Scotland.

The document must include a certificate signed by a suitably qualified independent person (such as your GP or a solicitor) confirming that you understand the significance of your Power Of Attorney. They also need to confirm that no undue pressure or fraud is involved in the making of the Lasting Power of Attorney (including Continuing and Welfare).

Powers of Attorney for England and Wales

In England and Wales the person giving another person the power to act on their behalf is called the "Donor".

Ordinary Power of Attorney

An Ordinary Power of Attorney or General Power of Attorney is a temporary power of attorney, usually created for a set period of time. These powers can be useful where the Donor is going abroad or is unable to act for some other reason and wishes someone else to have the authority to act on his or her behalf.

The authority granted can be general or limited to specific affairs. A General Power of Attorney agreement will usually end either at a specified time or upon the request of the Donor at any time using a Deed of Revocation and will automatically be revoked if the Donor loses mental capacity. There is no requirement for an Ordinary Power of Attorney to be registered and the form is easy to complete.

When choosing an Attorney to act for you it is important that you are confident that they know what you want and that you are comfortable that they will be making decisions on your behalf.

A Deed of Revocation is used to cancel or "revoke" a Power of Attorney.

Lasting Power of Attorney

Unlike an Ordinary or General Power of Attorney, Lasting Power of Attorney come into effect or continue in force after you lose mental capacity. It will come into effect right away unless you specify in it that it shouldn't take effect until you lose mental capacity.

The process is more complex than that for setting up a temporary power of attorney. Statutory forms must be used. The Attorney(s) can only use the Lasting Power of Attorney after it has been registered with the Office of the Public Guardian.

The Lasting Power of Attorney UK (LPA) was introduced by the Mental Capacity Act 2005 from 1 October 2007, when it replaced the Enduring Power of Attorney. They allow individuals to appoint Attorneys to look after their property and financial affairs (LPA - Property & Affairs) and also to make health and personal welfare decisions (LPA - Health & Welfare) when they lack the capacity to make these decisions themselves in the future.

Power of Attorney Scotland

In Scotland the person giving another person the power to act on their behalf is called the "Granter".

General Power of Attorney

A General Power of Attorney in Scotland is a temporary power of attorney. It serves the same purpose and is very similar to the Ordinary Power of Attorney used in England and Wales.

A Deed of Revocation is used to cancel or "revoke" a General Power of Attorney.

Continuing and Welfare Power of Attorney

There are two types of permanent powers of attorney in Scotland: a Continuing Power of Attorney and a Welfare Power of Attorney.

A Continuing Power of Attorney allows the Granter to appoint a legally authorised person to look after their property and financial affairs should they become incapable of doing so themselves at some point in the future. It remains valid after the Granter has become mentally incapable and must be registered to be effective. A Continuing Power of Attorney may be revoked using a Deed of Revocation at any time, either before or after registration, while the Granter still has mental capacity or in the event they regain it.

A Welfare Power of Attorney allows a Granter to appoint Attorneys to make decisions about the health and welfare of the Donor in the event of mental incapacity. It may be revoked using a Deed of Revocation at any time, either before or after registration, while the Granter still has mental capacity or in the event they regain it. It can also be combined into a Continuing and Welfare Power of Attorney.

Permanent Power of Attorney Guidance

We provide a detailed guide on how to complete and register a Lasting Power of Attorney or Continuing/Welfare Power of Attorney.

These documents are available individually or as part of a Full Annual Subscription (£199) - giving you access to all Clickdocs documents, packages and forms for a single annual fee.

 
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