Power of Attorney

What is a power of attorney and when might I need to have one ?

There are a number of different types of power of attorney, as described below, but in simple terms, a power of attorney is a legal document whereby a person (the donor) grants legal authority to one or more other people to represent him or her either for general legal matters or in a restricted manner in terms of what types of matters they can act or for time periods or both. Subject to mental incapacity, it is important to understand that a power of attorney can be revoked by the donor and does not prevent the donor acting in his or her own name, notwithstanding they have also given certain power to others.

Life is full of uncertainties and it is sensible idea to have plans in place such that people you trust can represent you should something go wrong, and this is one reason to have a power of attorney in place, but other common situations are:

• providing assistance to the elderly or disabled, who may have difficulties in carrying out day to day tasks such as banking
• if someone is going abroad for an extended period and needs matters to be dealt with at home in their absence
• If it is clear that, whilst someone is not yet mentally incapacitated, they have a degenerative illness which will result in mental incapacity
• Fulfilling commercial functions where there may be doubt or complications to having an informal principal/agent relationship

What types of power of attorney are there ?

There are 2 main categories which are:

a) General power of attorney

A general power of attorney is commonly used in circumstances where the donor needs assistance over a short period of time, for example if abroad  but with legal business and documents that need signing in his or her absence, or for limited tasks perhaps, such as for collecting a pension. More than one attorney can be appointed, as it is worth considering that if only one is appointed, that person may fall ill, and there can be added security in having 2 attorneys, such that each will have a duty to check that the other is complying with the instructions and not overstepping any mandate or acting incorrectly. There is no ned to register this type of power of attorney, it can be revoked with less formaility than the alternative described below, and it will automatically become void if the donor becomes mentally incapaciitated or has died.

b) Lasting power of attorney

This type of power of attorney is far more suitable for long terms situations, and as a safeguard, involves more formality and cost, but provides certainty, and is particularly relevant for elderly and/or infirm donors. There are 2 types, being:

A Lasting Power of Attorney for Property and Financial Affairs

This Lasting Power of Attorney allows you to choose someone to make decisions about how your property and finacial affairs are managed. A Lasting Power of Attorney has no legal standing until it's registered with the Office of the Public Guardian.

A Lasting Power of Attorney for Health and Welfare

This power of attorney allows you to choose someone to make decisions about your welfare and healthcare. It allows someone to make decisions about where you live, how you are cared for and what healthcare you receive; this can include specific decisions about treatments or more general decisions. These decisions can only be taken on your behalf when the Lasting Power of Attorney has been registered with the Office of the Public Guardian and you lack the capacity to make the decisions yourself.