Last Updated March 5, 2024
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What is a Power of Attorney?
A Power of Attorney (POA) is a legal document that allows someone to make decisions on another’s behalf.
This document outlines the terms and conditions between the donor (the one who grants power) and their attorney. It also acts as evidence if the attorney needs to prove their authority.
A Power of Attorney is also known as:
- Ordinary Power of Attorney
- Lasting Power of Attorney
- Health and Welfare Power of Attorney
- Property and Finances Power of Attorney
What are the different types of Powers of Attorney?
1. Ordinary Power of Attorney
This document is only valid while you have mental capacity. While it’s valid, an attorney can act in any way that the donor personally could (as allowable by law, of course).
Often, this type of POA is helpful when the donor wants to grant general power for a set period of time. For instance, the donor may be unavailable due to travel or other circumstances that need their attention. In this case, they might create the POA for their attorney to manage certain tasks while they’re unavailable. Then, when the tasks are complete (or the donor becomes available again) they can revoke the Power of Attorney.
2. Lasting Power of Attorney (LPA)
This document remains valid if you’re incapacitated and unable to manage your own affairs. In Northern Ireland, this form is known as an Enduring Power of Attorney.
Accidents can happen at any time. Illnesses may take years to erode your mental capacity. Severe health crises, such as an aneurysm or heart attack, can arise suddenly.
Life is unpredictable—which is why many people gain peace of mind knowing someone they trust can manage their affairs.
When creating an LPA in England, Wales, or Scotland, you can grant powers over two general areas of your life.
LPA for Property and Financial Affairs: This document grants your attorney authority to make decisions concerning your assets and personal property.
LPA for Health and Welfare: With this document, your attorney can make decisions that affect the donor’s quality of life, such as:
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- How to structure a daily living routine,
- Moving the donor into an extended care facility
- Hiring professional services or requesting aid from social services
- Giving or withholding consent for life-sustaining medical treatment
(These powers are not available to be given to another person in an Enduring POA in Northern Ireland. Instead, use a Living Will to specify preferences for health care.)
Remember: you must use a separate government form to create either of these LPAs, but you can save time by using LawDepot’s Power of Attorney template. Choose your jurisdiction and fill out our questionnaire, and then we’ll populate the correct document(s) for you. We’ll also give you tips on how to execute and register your document(s).
What happens if I don't have a Power of Attorney?
If you become incapacitated without a LPA, legal authorities can choose to assign a deputy to act on your behalf.
Note that this authority does NOT automatically go to your next of kin. Although family members may apply for this position, in the end, it’s up to the court’s discretion.
Without an LPA, your next of kin may have trouble accessing financial accounts, medical information, and more. So, while health organisations may ask you to name your next of kin, this person won’t have any legal decision-making powers. Instead, they may only have the right to information about your situation.
The best way to guarantee someone has the legal authority to represent you is to create a Lasting Power of Attorney. In fact, authorities will often follow the directions of your attorney—even if your family objects.
That being said, it’s essential to choose someone who is trustworthy and capable to manage your affairs.
Who can be my attorney?
As long as your attorney meets legal requirements, you may appoint whomever you wish. Generally, the law requires they be at least 18 years old and free from bankruptcy or debt relief claims.
Learn specific requirements for attorneys in your jurisdiction by referencing the following acts:
Many people appoint a family member or friend, but you can also choose a professional such as a solicitor or accountant. Of course, the type of powers being granted will impact your decision. For instance, you may hire a professional to manage your property and finances, but appoint a family member to advocate for your health and welfare.
You can even appoint multiple attorneys if it suits your purposes. In this case, your Power of Attorney will outline how the attorneys can operate. For example, you might require them all to agree before taking action on your behalf. Alternatively, you can make it so your attorneys can act independently of each other.
You can also identify an alternate attorney who is able to act for you if the original attorney is unable or unwilling to do so.
What are the things an attorney can or cannot do?
An attorney’s actions may be limited depending on the type of powers they have and any laws that apply to the situation.
For instance, when it comes to a LPA in England or Wales, the Mental Capacity Act 2005 restricts an attorney from:
If you’re unsure whether an attorney can act for you in a certain situation, it’s important to research which laws apply to you. Or, you can contact a solicitor for any specific questions.
How does a Power of Attorney compare to a Last Will?
Both of these documents are crucial estate planning tools, although they serve different purposes.
The main difference between them is that a POA functions while you’re alive, whereas a Last Will gets enforced after your death.
What’s more, an attorney only has legal authority over areas specified in the donor’s Power of Attorney document—which becomes invalid when the donor dies.
In contrast, an executor of a Last Will and Testament receives control over the distribution of the deceased’s property and finances to their beneficiaries.
Do I need a POA if I have a Will?
If you need help managing your affairs while you’re still alive, a Power of Attorney is essential. The instructions you leave in your Last Will and Testament are different from the legal authority given in a POA.
So, even if you appoint an executor in your Will, this doesn’t give them the right to make decisions on your behalf while you’re alive.
Can a POA change an existing Will?
No, an attorney does not have this power. If someone cannot change their Will, anyone can apply to the courts to change the Will on their behalf. So, an attorney could make this application, but their status as an attorney doesn’t change the process nor guarantee the application will be granted.
