What is a General Power of Attorney?
The coronavirus pandemic brought General Powers of Attorney more into the limelight, with many vulnerable people being advised to self-isolate. This means having an attorney to carry out certain tasks on their behalf could be incredibly useful.
In an ideal world, Lasting Powers of Attorney are much better, and you are far less likely to have problems with getting them accepted. Financial institutions are less keen on accepting General Powers of Attorney. They are sometimes unconcerned that a wife might starve to death in the time it takes to get a Lasting Power of Attorney registered if her husband goes into a care home, so they assume (with no evidence) he has lost mental competence so the joint account must be frozen. To be fair, they have to be cautious.
General Powers of Attorney (GPOA) are very different. They can only be used by a donor wishing to appoint an attorney to manage their financial affairs and remain valid while the donor has mental capacity. As soon as capacity is lost, the GPOA is no longer legal and cannot be used. The attorney can’t make any more decisions for the donor, and if they do, they are acting illegally (even if it is the husband or wife).
So why have a General Power of Attorney?
Sometimes, the need is short-term—for example, dealing with a house sale when you might be on holiday—and a General Power of Attorney is fine for that, even if you should have proper Lasting Powers of Attorney.
However, LPA applications are progressing slowly. The Office of the Public Guardian is doing its best to process applications within its target of 8 weeks rather than 20 weeks at present. This means that it’s taking longer to get an LPA registered, and if there are any issues with it, it’s currently difficult to contact the OPG by phone, and further delays are likely.
For a person who needs someone to make decisions for them right away a GPOA can be a great temporary alternative if there are no capacity issues on the horizon and the timescale is short – certainly not more than a year, and preferably far less. There is no registration requirement, so the document is ready to use as soon as it has been properly signed. There are also fewer people involved in the creation of a GPOA. 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 the attorney to sign.
The GPOA is executed as a deed poll by the donor, so the rules on who can act as a witness for them are not strict. The witness must be over 18, have capacity, and can’t themselves be a party to the deed. The attorney isn’t strictly a party to the deed as they aren’t a signatory, but it is still best to avoid them acting as a witness. This does mean, though, that someone else in the household could act as the witness, allowing the document to be made without placing anyone at risk (during a pandemic, for example).
What this doesn’t mean…
This doesn’t mean that LPAs should be forgotten about altogether. Since a GPOA ends if the donor loses capacity, it is still best to make sure that steps are being taken to get an LPA put in place at the same time, and the General Power of Attorney is just used as a stopgap.
See my Fee List. The cost of a General Power of Attorney on its own is £50 if you visit me, less with other work.
