A power of attorney is often described as a written legal document which is created by someone (called the donor) to appoint someone else (called the attorney or an agent) to act on his or her behalf. There are many reasons why you would want someone to have such authority to act on your behalf.
It could be for a short period whilst you are in hospital or away, or for a longer time-frame. But nevertheless, there are certain duties that the attorney must abide by whilst acting as an attorney:
- Duty of care towards the donor and act in a manner and have the same level of care as one would when doing things for oneself.
- Act in good faith and keep accounts when dealing with money.
- Keep all the donor’s information confidential.
- Do not be tempted to benefit oneself or act in a way that is not in the best interest of the donor.
However, there are some decisions that the attorney cannot make for the donor who lacks capacity and here are a few examples:
- Can’t make a will.
- Consent to marriage or civil partnership.
- Voting in public elections or referendum
You will often hear of the three types of power of attorney, which are:
- Ordinary Power of Attorney
- Enduring Power of Attorney
- Lasting Power of Attorney
Ordinary Power of Attorney
Sometimes this is referred to as a “general power of attorney” this has to be done in a particular manner and executed as a deed. This establishes authority on the person (attorney) to act on behalf of the donor on mostly financial matters. You can have restrictions to say for example that the person can deal with the bank accounts but not property.
The power ends when the donor ceases to have mental capacity or if he or she becomes bankrupt. A deed of revocation will also end an ordinary power of attorney.
Enduring Power of Attorney
The Enduring Power of Attorney was around prior to 1st October 2007. But since then no new ones were created but they are still in operation.
The Enduring Power of Attorney is similar to the Ordinary Power of Attorney in that it deals with property and financial matters. The power given to the attorney can be effective once it is signed or it can be restricted to only be activated if and when there is a lack of mental capacity.
Lasting Power of Attorney
The Law Commission Consultation Papers were seeking out in their discussions to increase to scope of authority not just for the attorney to act in relation to property and financial issues but health and welfare too. The outcome being that the Lasting Power of Attorney (LPA) came into effect in October 2007. There are two types of powers for the LPA:
- Health and Welfare
- Property and Financial Affairs
The property and financial one is very much like the old EPA but the health and welfare power allows the donor to give authority to the attorney to make decisions about their day to day care and also to consent or refuse medical treatments.