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 the 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 document allows the attorneys to make decisions that are limited to the donor’s property and financial affairs only. It can also be limited to only specific decisions.
A GPA 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.
A GPA needs to follow a simple form which is set out in Schedule 1 of the Powers of Attorney Act 1971. It also only needs to be signed by the donor and witnessed by someone. In comparison, completing an LPA requires a donor, a certificate provider, at least one attorney, and a witness to witness the donor and all the attorney’s signatures.
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.
When is it advisable to have a GPA instead of an LPA?
LPA applications are still progressing fairly slowly, although the situation has improved compared to how it has been previously, it still means that it’s taking longer to get an LPA registered than it used to.
A GPA is a great alternative for a person who needs someone to make decisions for them immediately. 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 GPA. The only people who need to sign are the donor and a witness. There is no need for a certificate provider and no need for the attorney to sign.
Does making an LPA after having made a GPA automatically revoke the GPA?
Making an LPA wouldn’t automatically revoke the GPA. The GPA would need to be revoked by the donor to make sure that the attorneys of the GPA weren’t able to act simultaneously with the attorneys of the LPA. However, this should only be done once the LPA is registered.
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.
Did you know?
- A GPA does not need to be registered so can be used immediately as long as it has been signed and witnessed correctly.
- A GPA can have a time limit of when it can be used i.e. an expiry date and this needs to be set out on the document itself.
- A GPA cannot be used to make health and welfare decisions.
- Multiple attorneys can be appointed under a GPA and they can either act jointly or jointly and severally.
- It is not possible to appoint a replacement attorney under a GPA.
You can seek advice about making a GPD, as well as LPAs, by speaking to a fully trained, insured and code-compliant member of The Society of Will Writers. To find a member in your area, visit our find a member page, or contact the SWW head office on 01522 687 888.
