Powers of Attorney

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Powers of Attorney

A Power of Attorney is a legal written document whereby an individual known as the "Donor", grants formal authority to another person (or persons), known as the "Attorney(s)" to act on the Donor's behalf in respect of dealing with certain of his specified affairs.

The actual "powers" that are granted to the "Attorney" are determined by the type of Power of Attorney that has been granted, the Powers conferred by the Donor as set down in the document and the statutory limitations applied by Law.

For England and Wales there are three kinds of Powers of Attorney and they are known individually as;

General Power of Attorney

A General Power of Attorney is a very simple and straightforward legal document that can be used to grant an Attorney quite a wide range of powers to act on your behalf. The General Power of Attorney can be used to enable your Attorneys to manage your financial or business affairs as well as your property and affairs, however the General Power of Attorney cannot be used for matters concerning your personal welfare.

A General Power of Attorney is particularly useful for granting specific powers to Attorneys and can be arranged to remain in power for an indefinite period of time or it could be time limited for a specified period of time. This kind of arrangement is often used when the Donor is leaving the country for a while and needs to authorise someone to look after their business affairs whilst they are away.

Two Attorneys are nominated and the Attorneys can act either in a "Joint" capacity or "Jointly and Severally".

If the Donor has elected for his Attorneys to act "Jointly", then just as it sounds, they must act together. Where a document needed signing on your behalf, both Attorneys would need to sign.

When acting "Jointly and Severally" has been selected, the two Attorneys can either act Jointly as above or seperately.

Should the Donor themself lose the mental capacity to make the decisions conferred by the Power, or in the event of death or the Donor being declared bankrupt,the General Power of Attorney is automatically revoked.

Enduring Powers of Attorney

An Enduring Power of Attorney is a legal instrument whereby the Donor hands over to the Attorney the power to make decisions about what is to be done with their property and affairs. Whilst the authority is valid and enabling the Attorneys to act on the Donors behalf from the inception of the Power being granted, the Enduring Power of Attorney is more commonly used when the Donor has lost the capacity to act for themselves.

Enduring Powers of Attorney ceased to be written from 1st October 2007, though Enduring Powers of Attorney that were granted prior to that date and have not subsequently been revoked, are still perfectly valid.

An Enduring Power of Attorney is very similar to a General Power of Attorney. The main difference between the two is that unlike a General Power of Attorney, an Enduring Power of Attorney does not become revoked automatically when the Donor loses mental capaity. In the eventuality that the Donor loses mental capacity or is suspected of losing mental capaity the Enduring Power of Attorney has to be registered with the Court of Protection.

Duties of an Attorney

Under an Enduring Power of Attorney, attorney duties include;

  • Acting in the Donors best interests having considered the Donors needs and wishes
  • Not gaining any personal benefit by taking advantage of the Powers granted
  • Keeping the Donors money seperate from their own and accounting for monies spent on the Donors behalf

Gifts of the Donors property can only be made under the following circumstances;

  • The gift is of a seasonal nature, for example a Birthday of Christmas present to a family member, or the event of a Birth or Marriage to persons related to or connected with the Donor
  • A reasonable gift to charity that the Donor may have ordinarily made or where they might have been expected to make such gifts

Other gifts including the establishment of trusts, are not permitted without prior approval from the Court of Protection.

It is possible for an Attorney to make inheritance tax planning gifts if they were given a specific Power to do so in the Enduring Power of Attorney document, however such Power is rarely granted since it contradicts the fundemental function of an Attorney, that is to look after the Donors assets!