General Power of AttorneyGeneral Power of Attorney

9th April 2020Siobhan Smith11
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With the ongoing coronavirus pandemic many people are understandably concerned about getting documents in place to allow someone else to make decisions on their behalf and manage their financial affairs. With many vulnerable people currently being advised to self-isolate this means having an attorney to carry out certain tasks on their behalf is incredibly useful.

Normally when we think of powers of attorney we think of Lasting Power of Attorney (LPAs). These documents allow a donor to appoint attorneys to make decisions on their behalf should they lose capacity to make their own decisions. They can be made to appoint someone to make decisions about health and welfare as well as property and financial affairs. In the case of managing financial affairs an LPA can also be used while the donor still has capacity to make their own decisions, making them useful for someone who has mental capacity but maybe still needs a bit of extra support.

General Powers of Attorney (GPAs) are very different. This type of document can only be used by a donor wishing to appoint an attorney to manage their financial affairs and is only valid while the donor has mental capacity. As soon as capacity is lost the GPA is no longer useable and the attorney can’t make any more decisions for the donor.

 

So why choose a General Power of Attorney right now?

At the moment LPA applications are progressing quite slowly. The Office of the Public Guardian is doing it’s best to process applications within their target of 40 days, but like many companies right now they are running on reduced staff. 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.

The more pressing issue though are the barriers to getting the LPA completed in the first place. Completing an LPA requires a donor, a certificate provider, at least one attorney, and a witness to witness the donor and all attorney’s signatures. In an ideal world the certificate provider could act as the witness to all people involved limiting the amount of people who need to be involved in the signing, but even without the current social distancing rules managing to gather the donor and all of their attorneys together is a rare occurrence, with attorneys often living far away from the donor.

For a person who needs someone to make decisions for them right away a GPA can be a great alternative currently. There is no registration requirement, so the document is ready to use as soon as it has been properly signed. There are also less people involved in the creation of a GPA. 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 GPA 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. What this does mean though is that someone else in the household could act as the witness, allowing the document to be made without placing anyone at any risk.

 

What this doesn’t mean…

This doesn’t mean that LPAs should be forgotten about altogether. Since a GPA 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 as soon as it’s possible to do so.

 

Siobhan Smith

After graduating from the University of Lincoln with a 2:1 in Law in 2014 Siobhan has dedicated herself to will writing as a member of the Society’s technical team. Siobhan is also the main tutor for the College of Will Writing’s 4 day introductory course, taught monthly at the College.

11 comments

  • Emma

    10th April 2020 at 4:43 pm

    Thank you. I was wondering about this. Are we able to do these? Will there be a questionnaire added to the software for us to use?

    Reply

    • Siobhan Smith

      10th April 2020 at 7:10 pm

      You can create these. There are no plans to add them to the software, but a basic template for a GPA can be found in Schedule 1 of the Power of Attorney Act 1971 or by contacting [email protected]

      Reply

  • Paul Adams

    10th April 2020 at 6:57 pm

    Your article states that a GPA ends when a donor looses capacity this is not correct, it is at that point that the GPA has to be registered the same way as an LPA with the OPG for a £82 fee, also you fail to mention how long a GPA lasts, generally i understand they only last a maximum of 12months without a start and end date in the document though this may not be correct, also some financial companies will only accept LPA even though GPA is a legal document.

    Reply

    • Siobhan Smith

      10th April 2020 at 7:21 pm

      Hi Paul, I believe you may be confusing GPAs (sometimes also called Ordinary Power of Attorney instead) with Enduring Power of Attorney (EPAs). GPAs never need to be registered and end automatically upon the donor losing capacity. EPAs, which can no longer be created, can be used without being registered while the donor retains capacity but as soon as they lose capacity a duty arises for the attorneys to register it with the OPG to continue using it.

      GPAs created under section 10 of the Power of Attorney Act 1971 may have no maximum time limit unless the document itself states one, if they are drafted to be truly general. It’s also possible to draft them to be specific to a certain task, in which case they end once the attorney has completed that task. In contrast, a power of attorney created under section 25 of the Trustee Act 1925 by a trustee delegating his trustee functions is slightly different, and this type of power is limited to only 12 months.

      I hope this clarifies matters.

      Reply

  • Claudine Jackson

    11th April 2020 at 6:58 am

    Very helpful article. Good to have a pragmatic option at a difficult time.

    Reply

  • Tina Hawke

    14th April 2020 at 12:05 am

    Thank you for this information, I have been dealing with a client that’s most probably going to require this. The information you’ve given is very helpful thank you all and thank you Siobhan

    Reply

  • Alan Edwards

    14th April 2020 at 11:35 am

    GPA’s definitely end if a person looses capacity. They can’t be extended by registering with the OPG. EPA’s have to be registered on loss of capacity. GPA’s can still be drafted EPA’s haven’t been available since 2007

    Reply

  • Nicola Combe

    15th April 2020 at 6:50 pm

    I have been issuing these as a temporary solution recently, offering them free of charge to Over-70s and for a charity donation for others. Of course I also encourage the donor to start the full LPA process at the same time.
    They are a really useful document in these times

    PS I spoke to the OPG today and they confirmed they have 12000 items in their backlog …

    Reply

  • Stephen Hall

    20th April 2020 at 8:51 am

    The GPA is a really good temporary option for the vulnerable, those struggling with ill health, or those too scared to go outdoors in the current climate, but the biggest problem that may arise with the GPA is the flimsy nature of this document.
    In some institutions, even a properly registered P&F L.P.A is being questioned and on occasions, attorneys refused to be able to act on the donor’s behalf due to a lack of knowledge/training of the document within certain financial organisations.
    We will continue to use this document as a temporary measure.

    Thank you for the article on it.

    Reply

  • LINDSEY EVERILL

    24th April 2020 at 9:55 am

    Siobhan do you know if our PIA covers them please? Many thanks

    Reply

    • Siobhan Smith

      24th April 2020 at 10:25 am

      Hi Lindsey, I’m afraid without looking at your insurance schedule I wouldn’t be able to confirm this. I’d recommend confirming with your insurers directly, or if you’re using the SWW Insurance Scheme through Jelf contact our membership team on [email protected] and they’ll be happy to take a look for you.

      Reply

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