When planning for the future, it is important to understand the different types of powers of attorney and how they each respectively work. By understanding these legal documents and the rights they grant, you will be better prepared to make informed decisions that reflect your true wishes now and later on in life.
The different types of powers of attorney can be broken down as follows:
Limited or General Power of Attorney (POA)
- A limited or general power of attorney (POA) is typically used for temporary situations and can also only be used if the donor has mental capacity.
- For instance, if you are abroad, you may wish to appoint another person to deal with certain affairs temporarily and in your absence.
Lasting Power of Attorney (LPA)
- LPAs allow appointed attorneys to make decisions on health and welfare or property and financial affairs.
- They can be used when the donor has mental capacity or once mental capacity is lost (provided the LPA was registered before capacity was lost).
- Typically, they are permanent.
Enduring Power of Attorney (EPA)
- EPAs can no longer be created but can continue to be used if registered before October 2007.
- EPAs have been replaced by LPAs.
- They do not cover health and welfare decisions.
Ultimately, a General or Limited Power of Attorney is often used to give an individual temporary authority on a financial matter. Lasting Power of Attorney, on the other hand, typically permits permanent authority on issues related to both financial matters or those concerning health and welfare. Enduring Power of Attorneys can no longer be created and have been replaced by Lasting Powers of Attorney.
How Long Does a Lasting Power of Attorney Last?
An LPA typically remains in force until the donor passes away or unless specific conditions mean it can be revoked by the Court of Protection, the donor, the attorney or as a matter of law.
Losing mental capacity
An LPA does not expire if the donor loses capacity. This differs from a General Power of Attorney which is automatically revoked when mental capacity is lost. However, if the attorney loses mental capacity, then they must step down from this role.
Separation & Divorce
Unless there are specific instructions within the LPA to the contrary, an attorney must revoke their role if they are married to the donor and subsequently become divorced.
Bankruptcy
An attorney acting for a Property and Financial LPA who subsequently becomes bankrupt or subject to a Debt Relief Order must stop acting as an attorney.
Joint Attorneys
If an attorney stops acting where they are acting jointly with another attorney, then the other attorney(s) must also stop acting unless the LPA expressly permits that they may continue making decisions.
If an LPA is ended for any of the above reasons it is possible to amend it. The donor can contact the Office of the Public Guardian (OPG) directly to do so. However, it is usually advised to draft a new document altogether if an amendment is necessary.
Timeframes for Registering an LPA
The Office of the Public Guardian is the government body that processes and approves applications for LPAs and there can be a long waiting time before these applications are looked at.
Currently, it can take up to 20 weeks before these documents are approved. This is why it is especially important that they are completed and signed correctly to avoid unnecessary holdup and delay or cost.
LPA application forms can be slightly complex to fill out and there is a certain order which must be followed in order to ensure they are approved by the OPG.
For this reason, many decide to instruct the assistance of a firm of Solicitors to help with the drafting of the application. This offers many some peace of mind and ensures that the LPA is registered correctly and accurately reflects the wishes of the donor.
