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.
If the enduring POA has not been registered, it may still be used if the donor still has mental capacity and there are no limits on the attorney’s powers - for example, there is no wording that states the powers are only effective on the donor becoming mentally incapable.
If it is confirmed that the donor has lost mental capacity, an enduring POA cannot be used until it is registered.
To cancel an enduring POA, the donor can complete a deed of revocation. The attorney must be notified of the cancellation, as well as the OPG if the enduring POA has already been registered.
Scotland and Northern Ireland
Scotland and Northern Ireland have devolved powers in certain areas, and in Scotland’s case a separate legal system.
Ordinary POAs in Scotland and Northern Ireland are broadly the same as in England.
Lasting and enduring POAs do not exist in Scottish law.
Continuing and welfare powers of attorney were introduced by the Adults with Incapacity (Scotland) Act 2000. There are two types:
- Continuing power of attorney Scotland – relating to property and/or finances; and
- Welfare power of attorney Scotland.
For continuing POAs made after April 2 2001, the deed must expressly provide that the attorney’s powers can continue beyond the donor’s incapacity. They must also be registered with the Public Guardian once the donor has lost capacity.
In Northern Ireland, a different type of enduring POA is used.
It can become effective immediately or only after it is registered, depending on how the donor would like to set it up. Either way, it needs to be registered on incapacity. Therefore, it is a bit like an English enduring POA.
Trustee power of attorney
The situation is a bit more complicated with clients who act as trustees, and advisers should be aware of this, particularly in the context of trust arrangements and pension schemes.
Wider trust law means that if an individual becomes mentally incapable they cannot act as a trustee.
