Power of Attorney (ordinary)

People may need, at some time during their life, to appoint someone to act for them and a Power of Attorney provides the ‘donee’ or ‘attorney’ – the person appointed – with a legal document which proves their powers. The document may be purchased from a law stationer or prepared for the donor by a solicitor. Its use may be to permit someone to act on behalf of the donor – the person making the power – while the donor is physically incapable of managing their affairs, for example because of illness or because they are going abroad for a lengthy period.

The Power of Attorney may be a general power, without restrictions on its use. Alternatively, it may only give limited powers to do a specific act, for example to sell a house. In either case, the donor can still act themselves. An attorney may sign on behalf of the donor who is a non-tax payer for bank and building society interest to be paid without deduction of income tax.

How long does a Power of Attorney last?

Whether the ordinary Power of Attorney is a general one or is limited, it is only valid while the donor is capable of giving instructions. It will end if:

• the donor becomes mentally incapacitated and no longer able personally
to supervise or direct the attorney;
• the donor revokes the Power;
• the Power is time limited and the time has expired;
• the Power is limited to a specific task which has been completed;
• the Attorney(s) themselves dies or become incapacitated.

Enduring Power of Attorney

An Enduring Power of Attorney (EPA) is a legal document by which someone appoints one or more persons to act for them, should they in the future become incapable of managing for themselves. As with the Ordinary Power of Attorney it must be executed – signed – while the donor is capable of understanding the nature and effect of creating an Enduring Power. The test of capacity for executing an Enduring Power The following matters should be explained to the donor and he or she should
understand that:

• the attorney will be able to assume complete authority over his or her affairs;
• the attorney will, in general, be able to do anything with the donor’s property which he or she could have done personally;
• the attorney’s authority will continue if the donor is or is becoming mentally incapable;
• if he or she is or is becoming mentally incapable, the EPA cannot be revoked, without confirmation by the Court of Protection.

Because tests of capacity vary it is possible that an individual donor may be able to execute an Enduring Power but may, at the same time, be ‘incapable by reason of mental disorder of managing and administering his property and affairs’. In these circumstances the validity of the Enduring Power of Attorney is not affected. However, it means that the Enduring Power of Attorney should be registered with the Public Guardianship Office (PGO) as soon as it has been signed by the donor and the attorney(s).

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