Investments  

Understanding the different types of power of attorney

  • List the three main types of power of attorney and how they differ.
  • Describe how the system works in Scotland and Northern Ireland.
  • Identify what a trustee POA is and what to do if no POA is in place.
CPD
Approx.30min

They must be a friend or colleague who the donor has known well for at least two years, or a lawyer/similar professional with the skills to judge they understand and are not being unduly pressured.

Registration

A lasting POA is slightly different to an enduring POA (see below) in that it has to be registered with the OPG from the outset or it will not be valid.

Although this may mean extra administration at outset, and a court registration fee, it makes the process more consistent and straightforward in the event the donor loses mental capacity compared to other types of POA.

Changing or ending a lasting POA

There is a specific section in the form that allows any restrictions on the attorney’s powers to be set out.

For example, the donor can choose to allow their attorney(s) to act as soon as the lasting POA is registered, or restrict its use until they have lost capacity.

A lasting POA can be changed by the donor if they still have mental capacity by contacting the OPG and providing certain documentation. If the donor wanted to add another attorney though, they would need to end the lasting POA and make a new one, again while they still had capacity.

To end a lasting POA, the donor must send the original document to the OPG along with a deed of revocation.

A lasting POA may automatically end if an attorney dies, loses mental capacity, or becomes bankrupt and they are a property and financial affairs attorney, and there are no replacement attorneys.

Enduring power of attorney

It has not been possible to make a new enduring POA since October 1 2007, although ones made and signed before that date may still be used.

While the donor is mentally capable, an enduring POA operates in the same way as an ordinary POA.

Again, enduring POAs do not apply to personal welfare, so if the donor still has capacity they may wish to consider making a health and welfare lasting POA (see previous section).

When the donor loses their mental capabilities, however, the enduring POA can remain in force, but only if the attorney has registered it with the OPG.

The attorney is not authorised to manage the donor’s affairs until it has been registered.

Enduring POAs registered before October 2007 will contain the stamp of the Court of Protection and the stamp of the Public Guardianship Office showing the date of registration. The Public Guardianship Office is the predecessor of the OPG.

Enduring POAs registered after October 2007 will bear the OPG’s mark, which is a security sticker or hologram, and the date of registration.