Power of Attorney is when one person (the Donor) authorises another person (the Attorney) to act on their behalf, and gives them certain legal powers to allow them to do so.
You might set up a Power of Attorney to allow a friend to sell your house for you while you are working abroad, or set up an Enduring Power of Attorney to allow trusted relatives to manage your affairs if you become ill in later years. The details and differences between the various powers are set out below.
Please note, however, that this Council does not act as Attorney under either Power of Attorney or Enduring Power of Attorney (these are different). However, the Council does act as a Receiver in certain circumstances.
Power of Attorney
This enables a person, or persons, to act on your behalf. It has to be given while you, the donor, has full mental capacity.
There are two types of Power of Attorney :
- General Power of Attorney – this covers
every action that might require a signature
- Specific Power of Attorney – This is limited to a single action i.e selling a property
If the donor later lacks capacity to manage his or her affairs, then the Power of Attorney becomes invalid. It is not necessary to seek legal advice.
However, it might be helpful to seek medical advice regarding the mental capacity of the donor at the time the Power of Attorney is given.
Other points
- Forms to authorise granting Power of Attorney can be obtained from good stationers or from the Public Guardianship Office
- If the donor becomes mentally incapacitated, the Attorneyship becomes invalid
- You do not need the services of a solicitor to obtain a Power of Attorney
Enduring Power of Attorney (EPA)
An alternative is to obtain an Enduring Power of Attorney:
- Again, the person agreeing this Power must do so while the donor is compos mentis (that is, of sound mind), as in (1) above
- An Enduring Power of Attorney can also be General or Specific
The difference with an EPA (Enduring Power of Attorney) is that if the person who gave the EPA becomes mentally incapacitated afterwards, the EPA can continue. However, for this to happen, the Attorney must register the EPA with the Public Guardianship Office as soon as the incapacity becomes obvious. If the Attorney does this, then the EPA will continue.
In these cases, it may be helpful if whoever is to be the Attorney, arranges for a letter from the donor's GP (doctor) to confirm that at the time the EPA was made, the donor was fully mentally alert. This can help prevent disagreements developing later on.
You do not need a solicitor to make an Enduring Power Attorney.
The forms can be obtained either from a good stationers, or from the Public Guardianship Office
Office of the Public Guardian
The OPG provides financial protection services for clients who are not able to manage their financial affairs because of mental incapacity. Their contact details are as follows:
Office of the Public Guardian
Archway Tower
2 Junction Road
London
N19 5SZ
Customer Services: 0845 330 2900
Enduring Power of Attorney (EPA) helpline: 0845 330 2963
Text phone: 020 7664 7755 (this service is for people who are deaf or hearing-impaired)
Fax: 020 7664 7785
Website: www.guardianship.gov.uk [external]
Email: customerservices@publicguardian.gsi.gov.uk
Lasting Power of Attorney
The Mental Capacity Act introduced Lasting Power of Attorney (LPA) on 1 October 2007. This replaced the old Enduring Power of Attorney (EPA), and no new EPAs can be made. However, any EPA made prior to 1 October 2007 is still valid.
Information and forms can be obtained from the Office of the Public Guardian at the above address, along with details about costs.
Please note that the London Borough of Waltham Forest does not act as Attorney, or give advice on it.
