A Power of Attorney is a legal authority given by a person to another person to deal with their personal affairs. This can include their finances, including their property, and their personal welfare, including medical decisions.
A Power of Attorney is a legal authority given by one person to another to deal with their personal affairs. This can include their finances, including their property, and their personal welfare, including medical decisions.
The person who completes the document giving the authority is the Granter and the person who is then given the authority to deal with these matters is the Attorney.
Powers relating to the Granter's financial affairs are known as "continuing powers." They can take effect immediately, or to begin when the Granter loses legal capacity. This is when the law says accident, disease or disability has meant the Granter is no longer able to fully understand the implications of the decisions they have to take. Welfare powers cannot be exercised until such time as the Granter has lost capacity.
The decision as to which powers to allow the Attorney to have should be freely made by the Granter, but the law says they should be specific as they will be interpreted strictly. For this reason, it is recommended that legal advice is taken before the document is prepared, to avoid any potential difficulties about what the Granter meant.
The Attorney can be one person or the powers can be shared between two or more people. It should be someone the Granter trusts, and has known for a long time. As well as a relative or a friend, it can be a professional person such as a solicitor or accountant or a combination. Different Attorneys can be appointed to deal with financial matters and personal welfare.
There are three documents that are required:
In order to create a Power of Attorney a written document is needed which sets out the precise powers that the Granter wishes the Attorney(s) to have. The document must be signed by the Granter in the presence of a solicitor or registered GP. It must also state clearly that the powers are continuing, welfare or a combination of both.
The document has to be the Granter’s own wishes, and the Granter will have to sign to indicate this. It should not be prepared by the Attorney and presented to the Grantor to sign. As the Power of Attorney gives authority to another person to act on your behalf it is your interests to seek professional advice when preparing this.
The document must also include a form of words signed by a registered solicitor or advocate, or a registered GP which confirms that they have interviewed the Granter immediately before he or she signed the document, and they are happy that the Granter understands the document and is not being unduly influenced by any 3rd parties.
The document must be registered with the Office of the Public Guardian. This prevents any potential disputes regarding the document’s legal validity or authenticity.
Once a Power of Attorney has been registered, the Public Guardian will return the signed Power of Attorney and issue a Certificate of Registration to the sender. If this is what the Granter wants, the Certificate can then be used by the Attorney immediately, in the case of a continuing Power of Attorney, regarding financial decisions. Alternatively, it can be kept safe until such times as the Granter has lost capacity or wishes the Attorney to act on his or her behalf.
However, an Attorney cannot exercise any of the powers relating the Granter’s welfare, such as medical decisions, granted until the Granter has lost legal capacity.
The Granter can reverse or revoke a continuing or welfare Power of Attorney or any of the powers granted in it once it has been registered with the Public Guardian. The granter must give notice of the revocation in writing. A formal process, again involving a solicitor or a GP, has to be followed.
This will depend on the complexity of the document, but a straightforward Power of Attorney can be prepared from £150 per person. The Public Guardian also has a registration fee of £75.
If you would like to speak to someone about a Power of Attorney, or if you would just like to ask a couple of question then please get in touch, we would love to speak to you. Contact us via email using the contact form below, call us on 0141 778 9292 or drop by our offices