HENCHLEYS – POWERS OF ATTORNEY (POA)

There are a variety of Powers of Attorney.

General Power of Attorney

A General Power of Attorney deed is effective and can be used immediately it has been signed/witnessed. There is no need to register such Powers. Generally these documents are used for short periods where cover is required e.g. if an individual is abroad on business/vacation or otherwise unavailable to deal with matters that require attention e.g. sale of property, financial transactions or other day to day dealings. A Power of Attorney may vest limited authority or general authority to deal with all matters and property. An ordinary/General Power of Attorney will remain in force provided you are mentally capable. Such a Power will immediately come to an end should you lose mental capacity. This explains the need for the introduction of Enduring Powers of Attorney (EPA) in the past and the current regime of Lasting Powers of Attorney (LPA).

Enduring Powers of Attorney

Such Powers can no longer be executed but an EPA which is already in force remains valid (subject to registration in circumstances noted in the document). EPAs dealt only with property and financial affairs. There are two types of the new style Lasting Powers of Attorney – a Property and Financial Affairs LPA and a Health and Welfare LPA (as below)

Lasting Powers of Attorney – Property and Financial Affairs

These provide authority for your attorney(s) to make decisions regarding finances and property. For the protection of the donor (person appointing attorney(s)) a certificate provider is required to join in to certify the donor’s understanding of the proposed appointment and confirm there is no evidence of fraud, coercion or undue influence. One of our solicitors will be happy to act as certificate provider if required.

Lasting Powers of Attorney – Health and Welfare

This authorises your attorney to deal with, for example, your GP, hospitals, Social Services, care homes, etc. A certificate provider is required (as above). Additionally, these LPAs include instructions in relation to life sustaining treatment.

Court of Protection – Appointment of Deputies

An individual must retain mental capacity to be able to execute valid legal documents such as Wills, Powers of Attorney, etc. In the event that an individual loses mental capacity he/she will not be able to execute any legal documents. In such circumstances, if property, financial or other matters require attention, it will be necessary for an application to be submitted to the Court of Protection for the appointment of a deputy to manage and deal with the affairs of the person lacking mental capacity. This is very much a more involved and expensive process than the appointment of attorneys and the valid appointment of attorneys obviates the need for the involvement of the Court of Protection in the affairs of an individual. An individual who appoints attorney(s) and executes a valid Will effectively covers himself/herself for life (Lasting Powers of Attorney) and thereafter (Will). Ironically, if an individual does not appoint attorneys or does not make a Will, the people that would become involved in dealing with his/her affairs by application to the Court of Protection or in dealing with an intestacy would probably be the same individuals that would no doubt have been appointed had the person in question executed Lasting Powers of Attorney and a valid Will. The main difference is the expense which is higher in the absence of validly appointed LPAs and executed Wills.