Powers of Attorney: Frequently Asked Questions

Articles: Wills and Estates Articles

"Powers of Attorney: Frequently Asked Questions" - by Miles Agmen-Smith

© Copyright ASCO Legal 2014

In addition to more generalised information about Powers of Attorney, the following are some particular questions people have asked:

 What is a Power of Attorney?

 A formal document authorising somebody to sign documents or make decisions on behalf of another person.  (They also work in some cases for companies).

 Are there different kinds of Power of Attorney?

 Yes, there are many different kinds of Powers of Attorney. Some of these are:

  •  General Powers of Attorney:  these are traditional forms of Power which have been around for centuries.  They authorise someone to act on someone else’s behalf, but they cease to work and are not allowed to be used if the person who gave the power is not, at the time, legally capable of making his or her own decisions, or dies.
  •  Enduring Powers of Attorney:  these are set up under a special law (the Protection of Personal and Property Rights Act 1988) which, depending on the form of Power chosen and the wording used, authorises the attorney (the person to whom the Power of Attorney has been granted) to act on behalf of the person giving the power of attorney even if that person later loses the legal capacity to act for himself or herself.  Enduring powers can only be prepared using one or other of the two set forms laid down by the Act and there are very strict rules about creating and using them.  There are two kinds:  one for personal care and welfare and one for property.  The right to use enduring powers stops and they come to an end if the person giving the power has died.
  •  Enduring Powers of Attorney relating to Personal Care and Welfare:  these relate only as the name suggests, to matters to do with the personal care and welfare of the person granting the power, and allow the attorney to take some kinds of decisions for somebody else in certain situations. They only become effective if that person is not capable of making decisions for themselves.  They can either apply to personal care and welfare generally, or only in some limited particular situations.  Only one person at a time (and only individuals) can hold an EPA for personal care and welfare (but it is possible to provide for an alternative appointment to be available as a back-up to cover the situation that the first person ceases to be able to act).
  •  Enduring Powers of Attorney for Property:  this is potentially a much wider power and allows the attorney or attorneys (there can be more than one) to act on behalf of and to represent, and in appropriate cases take decisions for the person granting the power. The kinds of decisions attorneys can deal with under these powers may potentially include not only matters relating to property, but also financial and many other types of matter generally.  They can also be limited to particular situations.
  •  Other types of power:  there are various other types of power of attorney which can be granted in particular situations and to which quite different rules apply.  They are not covered by the Act.  They can be granted to one or more persons or companies at the same time. 

 Creating Enduring Powers of Attorney and Other Types Of Power

 This can only be done by using the special documents in the form required by law, and having them correctly completed and certified.  This includes having them witnessed as required under the provisions laid down by the Act.   For other types of power of attorney there is more discretion regarding the documentation but they must still be formally executed by signing, and doing so in the presence of a witness who must also sign and add an address and occupation.  The witness does not have to be a special category of person in that case (but this is required for Enduring Powers).

 What happens when two or more persons are appointed as attorneys?

 If two or more attorneys are appointed under a power of attorney, the document should carefully show whether or not the attorneys can act by themselves (which is referred to as acting “severally”) or whether they may only act jointly.  “Jointly” means that they must both (or all) agree and sign the documents and authorise the transactions, and that none of them is capable of doing that alone.

 If it is not clear whether or not attorneys can act individually or must act together, what can I do?

 That will partly depend on the wording of the actual document.  Usually an option may be to formally cancel (“revoke”) those powers of attorney and to replace them with new documents which make the position clear and set things out as you want them to be.  (You do not need to reappoint any or all of the same people or companies as attorneys if you do not wish to:  you can appoint entirely different people).

 How do I cancel (revoke) a Power of Attorney?

 What is required will vary depending on the circumstances.  If you have full legal capacity and no special circumstances apply then this can be done in various ways.  These include doing so by giving notice in writing to the person or company granted the power that it has been revoked.  If a person’s ability to revoke a power may be lacking because of a lack of mental capacity then it is possible for family members to apply to the Court under the Protection of Personal and Property Rights Act to do this in appropriate circumstances.

 

 We have prepared this guide to and for our clients. It is not a substitute for detailed advice as every individual situation differs, and also government policies, laws and general conditions constantly change. We are happy to assist anyone who wishes to obtain more detailed advice or information on these or other matters.

 This publication may not, in whole or in part, be lent, copied, photocopied, reproduced, translated or reduced to any electronic medium or such other form without the express permission of ASCO Legal except complete copies may be made if fully attributed.