A Power of Attorney is a legal document that is given by the ‘donor’ to the attorney so the attorney can make decisions on their behalf. The attorney can make decisions on the donor’s behalf when the donor can’t or doesn’t want to. The Lasting Power of Attorney is the most well-known but, there are other types of power of attorney such as the Enduring Power of Attorney. The Power of Attorney must be granted, however, while the donor still has mental capacity.
Three main types
There are three main types of Power of Attorney:
- Ordinary power of attorney
- Lasting power of attorney
- Enduring power of attorney
Ordinary power of attorney
An Ordinary power of attorney (OPA) covers decisions about your financial affairs and is valid while you have mental capacity. It is suitable if you need cover for a temporary period (hospital stay or holiday) or if you find it hard to get out or you want someone to act for you.
It’s only valid while you still have the mental capacity to make your own decisions. You may want to set one up if, for example:
- you need someone to act for you for a temporary period, such an when you’re on holiday or in hospital
- you’re finding it harder to get out and about to the bank or post office or you want someone to be able to access your account for you
- you want someone to act for you while you’re able to supervise their actions.
An OPA is not as complex as the LPA below and can be set up using a standard set of wording but, it may be advisable to instruct a solicitor or by contacting Citizens Advice. There are a few points to consider, for example:
- whether to have an automatic end date
- any restrictions on the responsibility you are granting
- whether there is one or more attorneys; and
- whether or not you intend to pay the attorney for the services, the attorney is not normally entitled to be paid so there would need to be an express provision in the OPA.
An OPA can be used for an individual or for a business but you will need to include all the legal details of the limited company.
Lasting power of attorney
A Lasting Power of Attorney (LPA) covers decisions about your financial affairs or your health and wellbeing. It comes into effect if you lose mental capacity or if you no longer want to make decisions for yourself. The LPA took over from the Enduring Power of attorney below in 2007 although, in certain circumstances, the EPA can still be valid.
There are two types of LPA:
For more information on the LPA, see General Guidance on Lasting Power of Attorney
Enduring power of attorney
The Enduring Power of Attorney (EPA) was replaced by the Lasting Power of Attorney in October 2007. If you made and signed an EPA before 1 October 2007, however, it should still be valid. An EPA covers decisions about your property and financial affairs and it comes into effect if you lose mental capacity or if you want someone to act on your behalf.
The EPA must be registered as soon as the donor starts to lose capacity and when it is registered certain people must be informed:
- the donor
- 3 members of the donor’s family who are eligible
- Any other attorneys who have been appointed.
If you still have an EPA and the donor still has capacity, you might want to consider using an LPA instead.
