If the enduring POA has not been registered, it may still be used if the donor still has mental capacity and there are no limits on the attorney’s powers - for example, there is no wording that states the powers are only effective on the donor becoming mentally incapable.
If it is confirmed that the donor has lost mental capacity, an enduring POA cannot be used until it is registered.
To cancel an enduring POA, the donor can complete a deed of revocation. The attorney must be notified of the cancellation, as well as the OPG if the enduring POA has already been registered.
Scotland and Northern Ireland
Scotland and Northern Ireland have devolved powers in certain areas, and in Scotland’s case a separate legal system.
Ordinary POAs in Scotland and Northern Ireland are broadly the same as in England.
Lasting and enduring POAs do not exist in Scottish law.
Continuing and welfare powers of attorney were introduced by the Adults with Incapacity (Scotland) Act 2000. There are two types:
- Continuing power of attorney Scotland – relating to property and/or finances; and
- Welfare power of attorney Scotland.
For continuing POAs made after April 2 2001, the deed must expressly provide that the attorney’s powers can continue beyond the donor’s incapacity. They must also be registered with the Public Guardian once the donor has lost capacity.
In Northern Ireland, a different type of enduring POA is used.
It can become effective immediately or only after it is registered, depending on how the donor would like to set it up. Either way, it needs to be registered on incapacity. Therefore, it is a bit like an English enduring POA.
Trustee power of attorney
The situation is a bit more complicated with clients who act as trustees, and advisers should be aware of this, particularly in the context of trust arrangements and pension schemes.
Wider trust law means that if an individual becomes mentally incapable they cannot act as a trustee.
However, a trustee with capacity may still wish to delegate their trustee decisions for a limited period of time (e.g. long travel or working abroad) without resigning as a trustee.
In some pension schemes, the client may be a trustee of their scheme as well as a member.
The key point is that trustee powers cannot be delegated under a conventional POA. They can only be delegated using a trustee POA, as per Section 25(6) of the Trustee Act 1925. The legislation provides specific wording for the trustee POA.
A trustee POA only lasts for a maximum of 12 months. After that, a new trustee POA must be executed.
Unlike an ordinary POA, a trustee version does not automatically terminate on mental incapacity of the donor. The end result is that in some scenarios a client will need to execute both an ordinary and trustee POA.
