SIGNpost : Power of Attorney FAQ
Q. What is a Power of Attorney (POA)?
A. There are three main types of Power of Attorney (POA) - General, Limited, and Enduring (there is a fourth type - Trustee
- this is given by one or more of the joint owners of property or by a
trustee of a will or trust and should be drawn up by a solicitor. It
cannot be granted for a period of more than 12 months).
When you make a POA, you appoint another person to act on your
behalf. The person making the power is called the donor and the person
appointed is called the attorney. By granting a POA you provide a
document legally proving the attorney's powers. In general there are no
restrictions on who can be an attorney, providing they have the mental
capability necessary (if you wish to grant power to a minor you should
take legal advice).
A General POA gives the attorney a
blanket authority to act on the donor's behalf. The attorney is
authorised to sign most legal documents for the donor. A General POA
must be drawn up in a standard format. In England and Wales, there is a
pre-printed form (CON36) available from legal stationers, although this
form does not have to be used. A General POA can be typed or word
processed, as long as the correct words are used (your local Citizens
Advice Bureau will be able to provide you with the standard wording for
a General POA).
The Limited POA gives the attorney
limited powers to carry out the particular acts specifically authorised
in the document. It is much more difficult to draw up a limited POA
than a general one, as it must be drafted in very precise terms. If
there is any ambiguity as to whether a particular power has been
delegated, a court will tend to rule that it has not. You should seek
legal advice if wishing to draw up a Limited POA.
An Enduring POA is the only form of
POA which can continue if the donor loses the mental capability to act
on their own behalf, it can be 'general' or 'limited' and must be drawn
up utilising a standard format (see local CAB or solicitor for more
Q. What can or can't an attorney do?
Because it is straightforward, a General power is often granted even
where an extensive authority is not required. There are only a very few
things that a General POA cannot cover, the main ones being that:
- an attorney cannot sign a will or codicil for the donor,Â ........... and
- a third party cannot be compelled to enter into a contract
with the attorney acting on behalf of the donor (for example, a life
assurance company could insist on certain questions in a proposal form
being answered by the donor her/himself, before allowing the proposal
to go forward).
Q. Do I just appoint one person?
A. You can appoint one, two or more people as attorneys. If they are appointed 'joint' attorneys, they must always all act together.
This can therefore provide a useful safeguard against fraud or improper
acts by one attorney. However, the power of attorney comes to an end if
a joint attorney dies or becomes mentally incapable. If two or more
people are appointed as 'joint and several' attorneys, they may either
act together or individually,Â whatever happens to any of the other
attorneys. The signature or action of one attorney is as valid as if
s/he were the sole attorney.
Q. Can I grant a POA at any time?
A POA can be arranged at any time if you have the "mental capacity" to
manage your affairs, but only an Enduring Power of Attorney (seeÂ separate item on this topic Â») can continue if the client loses this capacity.
Therefore, if you are either now "mentally incapable" or have been
diagnosed with a degenerative disorder (e.g. Alzheimer's), you cannot
grant a Power of Attorney, or even an Enduring Power of Attorney, and
you must apply to the Court of Protection (see below). This may also
apply if you have been diagnosed with a disorder that may make it
difficult to communicate your wishes (you should seek legal advice if
this is the case).
The donor must sign the power of attorney. The signature must be
witnessed and attested by one other person. If the donor is physically
incapable of signing the document, another person in his/her presence
can do this, but two witnesses must attest that signature. Neither the
attorney nor her/his spouse should act as a witness.
Q. Can I still act on my own behalf?
A. Yes, you do not change your own power to act personally on your own behalf by granting a POA.
Q. How long does a power last?
A. A POA can be limited to a specified
period (however, be cautious as this may cause problems if transactions
are not completed by the specified date). Alternatively, a POA can be
drawn up to expire when certain specific duties have been completed. If
these are not included then it will remain valid until:
- it is revoked by the donor, the attorney, or a court order;.....or
- or the donor or attorney dies; .........or
- the donor or attorney are declared bankrupt; ..........or
- the donor becomes mentally incapable.
Note: remember to notify the attorney/donor (and any relevant third
parties) if you are terminating a POA. Provided that neither the
attorney nor any third party with whom s/he was dealing knew that the
power of attorney had ended, any transaction carried out by the
attorney could be considered valid.
Q. Does it have to be a Power of Attorney?
A POA provides you with the ability to be more flexible as it can cover
specific acts or be general in nature. However, there are ways you can
arrange to have specific areas of your financial affairs handled by
someone else without granting a POA. They can be arranged at any time
if you have the "mental capacity" to manage your affairs.
For example, if you are temporarily unable to cash your social
security benefit you can fill in the back of the giro or order book to
allow someone else, called an agent, to cash it. In addition you can
also appoint another person, known as an appointee, to act on your
behalf when dealing with any aspect of a benefit claim. You should
contact the office that deals with the relevant benefit for further
If you only want to give somebody the power to operate a bank
account on your behalf, a letter to your bank is normally sufficient or
you could use a "third party mandate" form that the bank will be able
Q. What should I do if the person does not have the mental capability to grant a POA or has been diagnosed with a degenerative disorder?
You must either seek legal advice or contact the Public Guardianship
Office that is responsible for Court of Protection and guardianship
issues in England and Wales; they also produce a number of useful
The Public Guardianship Office,
Please note that the above information relates to issues in England
and Wales only. SIGNpost or organisations like your local CAB can
2 Junction Road,
London, N19 5SZ.
E-mail:Â Â firstname.lastname@example.org
Website:Â Â http://www.guardianship.gov.uk
Telephone 0845 330 2900
Fax 0870 739 5780
Telephone 0845 330 2963
Fax 0870 739 5799