General Power of Attorney
This is a document designed to look after someone’s financial affairs for a temporary period of time and only so long as that person has mental capacity.
This may be required if a person requires assistance in managing finances or selling a home because:
• of a physical illness
• of an accident, which leads to physical injury
• a stay in hospital
• a period of time spent away from home e.g. a holiday or working abroad
• to tide over for a period whilst a Lasting Power of Attorney is being prepared and registered.
A General Power ceases to have effect if the person no longer has mental capacity. It is at this point that it is hoped that an Enduring Power of Attorney (drawn up prior to 2007) or a Lasting Power of Attorney for Property and Finances has been prepared and registered. If not, the only course of action is to apply for a Deputyship order which can be time consuming and expensive.
Enduring Power of Attorney
Enduring Powers of Attorney were replaced by Lasting Power of Attorney in 2007. Since 2007, no new Enduring Powers of Attorney could be made but an existing Enduring Power of Attorney is, still effective. Sometimes, the banks and financial institutions do not always initially recognise them as legitimate documents and occasionally question the validity of them, but they are still documents that can be used to manage someone’s financial affairs.
An Enduring Power of Attorney can be used whilst a person still has mental capacity, but if that person is deemed to be losing or has lost their mental capacity then it needs to be registered with the Office of the Public Guardian before it can be used any further.
Lasting Power of Attorney
Since 2007, the Lasting Power of Attorney for Property and Financial Affairs replaced the Enduring Power of Attorney. In addition, a Lasting Power of Attorney for Health and Welfare was introduced to enable others to make decisions about someone’s health and welfare should they not be able to decide for themselves. These Lasting Powers of Attorney allow an Attorney to deal with matters such as where a donor would live, what treatment they might receive and who they would see.
A Lasting Power of Attorney must be registered before it can be used. Once registered, an Attorney can act immediately under the Lasting Power of Attorney for Property and Financial Affairs, with the donor’s consent or in their best interests if they cannot give this consent.
A Lasting Power of Attorney for Health and Welfare, can only be used once it has been registered, but then also only if the donor has lost mental capacity.
All types of powers would cease on the donor’s death and the Executor named in the donor’s Will would then be responsible to administer to the deceased’s affairs.
Next Steps...
Powers of Attorney are important and vital documents. If you wish for more information regarding this please contact me by email at s.hilliard@timms-law.com or telephone 01332 364436.
