Update On Power of Attorney

With the ongoing Corona Virus pandemic, many people are understandably concerned about getting documents in place, to allow somebody else to make decisions on their behalf, and manage their financial affairs. 

With many vulnerable people being advised to self-isolate, this means having an attorney to carry out certain tasks on their behalf is incredibly useful, and as a general practice rule, we recommend and advise all clients to have a Power of Attorney. 

There are two forms of Lasting Power of Attorney, one for Property and Financial Affairs, and one for Health and Welfare.  

Often people will only commit to only doing the Financial Affairs Attorney, but we recommend most strongly, in view of the current epidemic, that both Powers of Attorney be entered into at the same time. 

Normally when we think of powers of attorney, we think of Lasting Powers of Attorney (LPA’s). These documents allow a donor to appoint attorney’s to make decisions on their behalf, should they loose capacity to make their own decisions, they can be made to appoint someone to make decisions about health and welfare, as well as property and financial affairs. 

In the case of managing financial affairs an LPA can also be used while the donor has capacity to make their own decisions, making them useful for somebody who has mental capacity, but may be still needs a bit of extra support. 

General Powers of Attorneys (GPA’s) are very different. This type of document can only be used by a donor wishing to appoint an attorney to manage their financial affairs, and cannot be used for any medical or welfare affairs. 

This is only valid while the donor has mental capacity, as soon as capacity is lost, the GPA is no longer useable, and the attorney cannot make any more decisions for the donor. 

Why Choose a General Power of Attorney Right Now? 

At the moment LPA applications are progressing quite slowly. In a recent telepone call with The Office of the Public Guardians Office in Birmingham, a senior administrating officer told us that they currently had a backlog of over 15,000 applications. 

We understand Government resources are going to be increased for the office, as to the urgency of these applications. 

The Office of the Public Guardians (OPG) are doing their best to process these applications within their target of 40 days, but like many companies right now they are running on reduced staff. This means it is taking longer to get an LPA registered, and if there are any issues with it, it is currently difficult to contact the OPG by phone. 

The more pressing issues though are the barriers to getting the LPA completed in the first place.  

Completing an LPA requires a donor, a certificate provider, at least one attorney, and a witness to witness the donor and all attorney signatures. In an ideal world the certificate provider could act as the witness to all people involved, limiting the amount of people who need to be involved in the signing, but even without the current social distancing rules, managing together the donor and all their attorneys together is a rare occurrence, with attorneys often living far away from the donor. 

From our experience, some urgent cases are being requested, as the donor has gone to a care home, or has gone into hospital for routine operations. 

A General Power of Attorney (GPA) can be an alternative, but we have to say their use can be severally restrictive, and some authorities, including care homes, hospitals and other public authorities refuse to accept them as sufficient power for the attorney to make decisions on behalf of the donor 

However with a GPA there is no registration requirement, so the document is ready to use as soon as it has been properly signed. There are also less people involved in the creation of a GPA. The only people who need to sign are the donor themselves and a witness. There is no need for a certificate provider, and no need for an Attorney to sign.  

A GPA is executed as a deed pole by the donor, so the rules of who can act as witness for them are not strict. The witness must be over 18, have capacity, and cannot themselves be a party to the deed. The attorney is not strictly a party to the deed, as they are not a signatory, but it is still best to avoid them acting as a witness. What this does mean though, is that somebody else in the household or in the family could act as a witness, allowing the document to be made without placing anyone at risk. 

We do however wish to stress that a GPA can be somewhat limited, and it is only after the event you will know whether the authorities will accept it or not. 

It is currently our company policy to advise that proper LPA’s for both Property and Finance Affairs and for Health and Welfare, should be entered into. 

A GPA ends if the donor looses capacity, and of course that is one of the main considerations of the LPA’s, as they continue until the donor passing. 

If you require help in connection with any of these matters, please do not hesitate to contact us. 


Tel: 01684 291469

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