From time to time, financial and professional institutions will come across different powers of attorney. This guidance has been provided by Wright Hassall and is derived from a note prepared by Solicitors for the Elderly, a national association of lawyers whose members specialise in advising older and vulnerable clients of which Wright Hassall's advisors are members.
Different types of Powers of Attorney
There are three types of powers of attorney that can be used in England and Wales: -
- An ordinary power, which is made under the Powers of Attorney Act 1971 and will end if the maker of the power subsequently loses mental capacity. If the document includes the power to delegate trust powers the authority in respect of these powers is limited to a 12 -month period.
- An enduring power, made before the 30th September 2007, under the Enduring Powers of Attorney Act 1985. These powers can be used as an ordinary power where the maker has mental capacity, and survives any subsequent mental incapacity of the maker, provided it is registered either with the Court of Protection (if the registration occurred before 30th September 2007) or the Office of Public Guardian (if registered after 1st October 2007).
- A property and affairs lasting power of attorney made after the 1st October 2007, under the Mental Capacity Act 2005, which must be registered with the Office of Public Guardian before it can be validly be used. Unlike the enduring power, registration does not indicate that the maker of the power lacks mental capacity either the donor or the attorney will be able to sign unless the power indicates otherwise.
What are certified and office copies
The original power is the source of the attorney’s authority. As such it is very important and it is unlikely that the original will be given to you in case the original is lost, mislaid, damaged or destroyed in some way. Instead, it is usual for financial organisations to be sent a certified or office copy of the power.
A certified copy is a photocopy which bears a certificate signed by the maker of the power, a solicitor, a Fellow of the Institute of Legal Executives or a stockbroker at the end (of each page) that it is a true and complete copy of the original and must be accepted as proof of the contents of the original (See section 3 of the Powers of Attorney Act 1971.
An office copy is produced either by the Court of Protection or the Office of Public Guardian, and marked as a copy of the original document. Unlike the certified copy, The Office of Public Guardian only stamps the first page of the copy power.