General Power of Attorney

So how does a General Power of Attorney help? Well in the wake of the Coronavirus pandemic, many people are understandably motivated to have documents that allow someone else to make decisions on their behalf, as well as manage their financial affairs. Vulnerable people would be well-advised to officially have another person or people able to carry out certain tasks on their behalf.

Normally when we think of powers of attorney, we think of Lasting Power of Attorney (LPA). These documents allow a person (a Donor) to appoint another person or people (Attorneys) to make decisions on their behalf should they ever lose their mental capacity to make their own decisions. A Donor may appoint someone to make decisions about their health and welfare matters as well as their property and financial affairs. In the case of managing financial affairs, an LPA can also be used whilst a Donor still has their mental capacity to make their own decisions (with the Donor’s express permission), making LPA useful for someone who retains their mental capacity but maybe also wishes to have extra support.

General Powers of Attorney (GPA) are very different. This type of document can only be used by a Donor wishing to appoint an Attorney or Attorneys to manage their financial affairs, and is only valid whilst the Donor has their mental capacity. As soon as mental capacity is lost by the Donor, the GPA is no longer valid, and the Attorney(s) cannot make any further decisions for the Donor.

Why choose a General Power of Attorney (GPA) in the Short Term?

Presently, LPA applications are progressing quite slowly. The Office of the Public Guardian (OPG), being the court which deals with all LPA applications, attempts to process all documents within their target timescale of 40 days. But, like many companies and institutions now, they are running on reduced staff. This means that it is taking much longer than before to get an LPA registered, and if there are any administrative issues arising after application documents have been submitted to the OPG, it is currently difficult to contact them by telephone.

The more pressing issue is the logistical process of getting LPA documents initially completed. This requires a Donor, a Certificate Provider (see below), at least one Attorney, and someone to witness the signatures of the Donor and all Attorneys. A Certificate Provider is someone not related to the Donor by blood or marriage, aged 18 years or above, and either known to the Donor for more that 2 years OR suitably professionally qualified to confirm that they believe the Donor capable of understanding that they are arranging LPA, and that they (the Donor) are not being coerced or pressured into arranging LPA against their will.

In an ideal world, the Certificate Provider would act as the witness to all signatures, thus minimising the number of people involved in the process, but gathering all parties together can still prove difficult, especially if all parties are not based geographically close together.

For a person who needs someone to make decisions for them immediately, a GPA can be a great additional option to LPA. There is no requirement to register the document with the OPG, so it is ready to use as soon as it has been properly signed and witnessed. There are also fewer people involved in the creation of a GPA. The only people required to sign are the Donor and their witness. There is no need for a Certificate Provider, or for the Attorney to sign the document.

The GPA is executed as a Deed by the Donor, so the rules regarding who is able act as a witness are not strict. The witness must be over 18, have mental capacity, and cannot themselves be a party to the deed (e.g. the Attorney). Although the Attorney is not strictly a party to the deed as they are not a signatory, it is still best to avoid them acting as a witness. What this does mean though is that someone else in the household could alternatively act as the witness .

Beware!

Having a GPA does NOT mean that LPAs should be forgotten as a result. Since a GPA ends if the Donor loses their mental capacity, it is still important to ensure that steps are being taken to arrange LPAs as soon as possible.

For further information WITHOUT fear of consultation fees or obligation, please visit our Power of Attorney page on our website or contact us now for more details and a no obligation conversation.