Powers of Attorney

A Power of Attorney is a legal document whereby a person (the Donor) appoints someone else (the Attorney) to act on his or her behalf and confers on the Attorney authority to carry out some act or acts on their behalf. To act generally means in place of the Donor.

A Power of Attorney must be in the form of a deed and comply with the provisions of the Law of Property (Miscellaneous Provisions) Act 1989.

To create a valid Power of Attorney, the Donor must be a competent person. Usually a Power of Attorney is created when the Donor is going abroad or is unable to act for some other reason. A Power of Attorney may be revoked by the Donor at any time and is automatically revoked by death, mental incapacity or bankruptcy of the Donor.

In contrast there is another form of power capable of continuing despite mental incapacity of the Donor which is known as Enduring Power of Attorney. Again this power must be executed as a deed and if the Donor becomes mentally incapable, the Attorney must register the power with the Court of Protection in order for the Attorney to act under the power.

The Mental Capacity Act 2005 creates a new statutory form of Power of Attorney, "the Lasting Power of Attorney". This will replace the Enduring Power of Attorney. The Lasting Power of Attorney can extend to personal welfare matters as well as to property and affairs. The provisions of the Act will be brought into force in due course.

It should be noted that we cannot offer any advice on Powers of Attorney and any person considering creating a Power of Attorney is therefore advised to seek specialist legal advice.

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