Power of Attorney FAQ - United Kingdom-Northern Ireland


General Information
What is a Power of Attorney?

A Power of Attorney is a document in which one person (the Donor) appoints another person (the Attorney) to act for him or her. There are many reasons why you might decide to use a power of attorney. For example, if you are going to be out of the country for a lengthy period of time, you might want someone to do your banking while you are gone. If you are approaching old age, you may want to give a Power of Attorney to a person you trust so that he or she can manage your property for you.

Will a Power of Attorney still be valid after the Donor dies?

NO.

The Donor
Who is the Donor?

The Donor is the person who needs someone else to act for him or her. The Donor must be an adult. The Donor must be capable of making his or her own decisions at the time the Power of Attorney is executed (signed).

What is "incapacity"?

A person is incapable of managing property if the person is unable to understand information relevant to making a decision about the management of property, or if the person cannot appreciate the foreseeable consequences of making (or not making) a decision about the management of property.

The Attorney
Who is the Attorney?

The person appointed by the Donor is called the Attorney. The Attorney is the person who acts for the Donor.

Does the Attorney have to be a lawyer?

No, there is no need for the Attorney to be a lawyer. (See below for Attorney qualifications.)

What qualifications does an Attorney need to have?

The Attorney must be a capable adult. The Attorney cannot be an undischarged bankrupt. The Attorney should not be the owner, operator or employee of a nursing home or extended care facility in which the Donor is a resident.

What qualities should I look for in an Attorney who will be managing my property?

Your Attorney must be someone whom you trust completely. In addition, remember that your Attorney will have complete authority to deal with your financial and legal affairs (subject to any limitations or restrictions specified in your Power of Attorney). You should ensure that the person you choose has adequate financial management skills and sufficient time to handle your affairs properly. Your Attorney must be available when required, be able to objectively make decisions and be able to keep accurate financial records.

What are the responsibilities of my Attorney?

Your Attorney has the following responsibilities:

  • to act in your best interest;
  • to keep accurate records of dealings/transaction undertaken on your behalf;
  • to act for you with the utmost good faith and to avoid situations where there is a conflict of interest; and
  • to keep your property and money separate from their own.
Is it okay to appoint a relative as Attorney?

Yes, people often appoint relatives as Attorneys.

Can my Attorney also be a beneficiary in my will?

Yes.

What are Joint or Joint & Independent Attorneys?

Sometimes a Donor will want to appoint two Attorneys. In that case the Donor must decide whether the Attorneys will be 'joint' Attorneys or 'joint and independent' Attorneys. Joint Attorneys must act together. They must both agree before any action can be taken, and they must both take the same action at the same time. If one is absent, no action can be taken. Joint and independent Attorneys can act together or individually. Either one can take an action without consulting the other. If one is absent, the other can still act.

Place and Time
What is "Jurisdiction"?

A jurisdiction is a place that has its own laws. It is a territory with boundaries, such as a state or a province. For example, California is a jurisdiction in the United States, Ontario is a jurisdiction in Canada, Scotland is a jurisdiction in the United Kingdom and Queensland is a jurisdiction in Australia.

What is the "Governing Law"?

A Power of Attorney is governed by the law of the jurisdiction where the actions of the Attorney will be performed. Normally, this is the place in which the property of the Donor is located. Therefore, it is not a good idea to appoint an Attorney who resides in a different jurisdiction, unless the property or assets you want the Attorney to deal with are also in the different jurisdiction. If you anticipate that your Attorney will be acting in more than one jurisdiction, you should probably make separate Powers of Attorney for each jurisdiction.

Examples:

  • If your bank accounts and other property are located in the jurisdiction where you live, you will want to appoint an Attorney who lives in the same jurisdiction.
  • If you live in one jurisdiction but have a bank account or other property someplace else, and you want an Attorney to deal with that property, you will want to choose the place where the property is located as the governing law, and appoint an Attorney who is located in (or is willing to travel to) the same jurisdiction as the property.
When does a Power of Attorney start?

A general Power of Attorney starts immediately upon execution. An Enduring Power of Attorney starts when it is registered with the Office of the Public Guardian (Office of Care and Protection in Northern Ireland).

How/when does a Power of Attorney end?

An ordinary Power of Attorney ends automatically when the Donor becomes mentally incapacitated or dies. An Enduring Power of Attorney ends automatically when the Donor dies. As long as you are mentally competent, you may revoke your Power of Attorney at any time by notifying your Attorney (in writing) that the Power is revoked and destroying the original Power of Attorney. Otherwise, a Power of Attorney continues in effect indefinitely, unless the document specifies an end date.

Can I revoke my Power of Attorney after I have become incompetent?

A person who is incompetent cannot revoke an Enduring Power of Attorney. However, an ordinary Power of Attorney is automatically revoked when the Donor is found to be incompetent.

How do I revoke my Power of Attorney?

You can revoke, or cancel, a Power of Attorney by giving your Attorney a written notice saying that his or her power has ended. Also, you may make a new Power of Attorney that states your previous Power of Attorney is now revoked (but you must still notify the previous Attorney of the revocation). Third parties (e.g., people or organisations that have been dealing with the Attorney) must also be notified. Additionally, if your Power of Attorney is registered you must also register the revocation.

Please note that if you fail to inform your Attorney of the revocation, your Attorney can legally continue to make decisions on your behalf.

Powers
Should I put restrictions on my Attorney?

When you give a "general" Power of Attorney, you give your Attorney the authority to do anything you could do yourself, with a few exceptions - such as areas where you possess skills that your Attorney doesn't (e.g. if you are a dentist, you cannot authorise your Attorney to practice dentistry on your behalf). But there may be some things you would prefer your Attorney did not do. For example, you may want to require that your Attorney get prior approval from you before signing cheques for large amounts on your account.

Should my Attorney be allowed to personally benefit from managing my assets?

If the person you are appointing as your Attorney is also a member of your family or a beneficiary in your will, you may want that person to be able to personally benefit from managing your assets, since you intend that person to become owner of the assets eventually. Generally, however, it is probably not a good idea to allow your Attorney to personally benefit from managing your assets as this creates a conflict of interest for your Attorney, who is legally obligated to act in your best interest, not his or her own best interest.

What can the Attorney do?

The Attorney may transact business respecting the Donor's property in all areas specified by the Donor.

Is the Attorney obligated to do anything?

Generally speaking, the Attorney is not obligated to act for the Donor. However, in some circumstances the Attorney may agree, in writing, to accept an obligation to take action when necessary. When the Attorney acts on behalf of the Donor, the Attorney must act in the best interest of the Donor.

Does my Attorney have the authority to act while I am still available and able to take care of my own finances?

Generally speaking, a Power of Attorney is effective as soon as it is executed (signed and witnessed, etc.) whether or not the Donor is available or able to handle his or her own affairs. However, the document might specify that it will only be effective under certain conditions. For example, some Powers of Attorney specify that they will not come into effect unless and until the Donor has become mentally incompetent to handle his or her own finances. Note: Some jurisdictions do not allow Powers of Attorney that commence upon the occurrence of a condition or event such as mental incapacity.

Signing Details
What are the requirements for signing, witnesses and notarisation?

Different jurisdictions have different signing requirements (witnesses, etc.) for Powers of Attorney, which may depend on whether or not the Power is enduring, and how it is intended to be used. Some financial institutions have their own requirements for non-enduring Powers, so it is a good idea to contact them for advice prior to signing.

What does it mean to "execute" a document?

When a person "executes" a document, he or she signs it with the proper "formalities". For example: If there is a legal requirement that the signature on the document be witnessed, the person executes the document by signing it in the presence of the required number of witnesses.

How should I sign my Ordinary Power of Attorney document?

To be valid, you must sign the document with your usual cheque signing signature. You should also initial each page of the document. The signing and the initialing of the pages must occur in the presence of your notary or witness(es).

After you have signed and initialed your document in front of your notary or witness(es), your notary or witness(es) must sign on the applicable page of the Power of Attorney and should initial each page. This must occur in your presence.

Does it matter where my Power of Attorney document is signed and witnessed?

If your document will be used in a different jurisdiction - but not in a foreign nation - there is no problem with having the document signed and witnessed where you live, rather than where the document will be used. The witnessing requirements (number of witnesses required, whether or not notarisation is needed) should still be those of the place where the Power of Attorney will be used, however. (Not applicable to Enduring Powers)

What if my Power of Attorney will be used in a foreign nation?

If your document is intended to be used in a foreign nation, you may have to have it "authenticated" or "legalised". This is a process whereby a government official (e.g., the Secretary of State, the Foreign Office, the Office of the Attorney General - depending on where you live) certifies that the signature of the authority (e.g., notary or solicitor) on your document is authentic and should be accepted in the foreign nation. For more information about document authentication and legalisation, contact the local consulate/embassy of the foreign country your document will be going to, or one of the following government web sites:

United States: https://travel.state.gov/content/travel/en/legal-considerations/judicial/authentication-of-documents/office-of-authentications.html

United Kingdom: http://www.fco.gov.uk/en/about-us/what-we-do/services-we-deliver/legal-services/legalisation/

Canada: http://www.gov.on.ca/MBS/english/mbs/ods/authent.html (web site is for Ontario - other provinces contact the provincial Office of the Attorney General)

Australia: http://www.dfat.gov.au/brisbane/index.html

Other Considerations
Do I have to register my Power of Attorney with a Land Titles Office?

A Power of Attorney given for the purpose of buying or selling real property (land) should be registered.

 

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