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:
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?
- 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.
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.
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).
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.
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