Purpose of a Power of Attorney
Specific Powers: These documents are drafted as a result of specific instructions for a specific reason such as to sell a particular property whilst the principal is overseas.
Enduring Powers: Enduring Powers of Attorney provide for the unforeseen circumstance that might see the principal unable through sickness or accident to run their own affairs.
The difference between a Power of Attorney and an Enduring Power: A Power of Attorney will cease if the principal loses capacity. An Enduring Power of Attorney continues to have effect even after the principal loses capacity. In order for the power to be an enduring power of attorney the document must express that it will continue after the principal lacks capacity.
The Scope of an Attorney’s Authority: A Power of Attorney that does not restrict the authority of the attorney through specific conditions and limitations is considered to be a general power of attorney, and authorises the attorney to do any act that the principal is able to and does authorise, subject to restrictions that limit the things that a principal can lawfully authorise an attorney to do.
A Power of Attorney that contains specific conditions and limitations is considered to be a limited power of attorney and restricts the attorney’s authority to carrying out only the acts specifically listed within the Power of Attorney, subject again to restrictions that limit the things that a principal can lawfully authorise an attorney to do.
When appointing an Attorney, a principal needs to consider closely the scope of the authority that they wish to give to their attorney, and who they are appointing. A general power of attorney should only be given to someone who can be trusted not to abuse or misapply such a wide authority.
What an Attorney can’t do: Whilst an attorney can be authorised to do, on the principal’s behalf, almost anything the principal can lawfully do, an attorney cannot be authorised to carry out an unlawful act or do certain things. For example: (a) vote for the principal; (b) make decisions about the care or wellbeing of children, or about adoption or surrogacy or matrimonial/personal partner matters; (c) make or revoke a will or power of attorney; (d) manage the estate of the principal after their death. This list is not exhaustive. Other laws might exclude an attorney from being able to attend to some other matters. For example, the respective terms of use of ‘digital assets’ such as email accounts, domain names and Facebook need to be carefully reviewed as many provide that only the principal, and not an attorney or anyone else, can access or manage them, and breach can entail committing a serious civil and/or criminal offence.
The information in this article is merely a guide and is not meant to be a detailed explanation of the law and does not constitute legal advice. We recommend you consult with a solicitor in relation to your specific circumstances.