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• Enduring powers of attorney
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Enduring Powers of Attorney

A Power of Attorney is a document whereby a person (the Donor), appoints one or more people (the Attorney(s), to deal with matters on behalf of the Donor.

A Power of Attorney can either be general covering all the Donor’s affairs, or specific whereby it authorises the Attorneys to do one particular job (for example sell a house).  In addition Powers of Attorney can be indefinite or time limited.

For many years the most common form of Power of Attorney was a General Power of Attorney.  This was what it said, a general power giving the Attorneys unlimited power without any time limitation. 

A major problem with this form of Power of Attorney is the fact that the authority of the Attorneys only subsisted for as long as the Donor has the capacity to carry out the acts which he or she has asked the Attorneys to carry out on his or her behalf.  If therefore the Donor ceased to have mental capacity the Power of Attorney ceased to be valid.  

With an increasingly aging population this was becoming a major problem and either Attorneys turned a blind eye to the mental capacity of their Donor or alternatively they were forced into the lengthy and expensive procedure of going to the Court of Protection.  As well as being slow and expensive the Court of Protection really could not handle all this extra work.

The result was that the Enduring Power of Attorney was created.  An Enduring Power of Attorney is a specific form of Power of Attorney, which states that it will remain valid even if the Donor ceases to have mental capacity.  This has revolutionised the handling of the affairs of many people, particularly the old and frail.

The Mental Capacity Act 2005 will probably replace enduring powers in 2007 with Lasting Powers of Attorney. These are designed to overcome some of the weaknesses of enduring powers. Most importantly lasting powers may be used to extend the authority of Attorneys to deal not only with financial affairs but also with personal welfare decisions.

Because Enduring Powers of Attorney will continue to be valid after 2007 some clients may find it beneficial to create them before the advent of the new-style Lasting Powers of Attorney.

Please contact a member of the team to discuss your individual needs.