General Powers of Attorney (GPAs) and Lasting Powers of Attorney (LPAs) are similar in some ways. They both provide a way for a person to name others to make decisions on their behalf. However there are some important differences between when they can be made and how they work in practice.
For LPAs, in order for them to be valid they must be signed by the donor, a certificate provider and the attorneys and certain signatures need to be witnessed. The LPA also needs to be registered with the Office of the Public Guardian (OPG) before being used.
The formalities for a GPA to be used are however much simpler, a GPA just needs to be signed by the donor and witnessed by someone who is not a party to the GPA in order to be valid and can be used without being registered with the OPG. There is doubt on whether an attorney could witness the donor’s signature and it is advisable that an independent witness is used.
When do they end?
A GPA will end when the donor loses mental capacity, or earlier if the GPA was restricted for a period of time. It cannot be used by the attorneys after this. LPAs however can continue to be used by attorneys once the donor has lost mental capacity, but end on the death of the donor.
LPAs must be made in their prescribed forms. These are currently the LP1F for Property and Financial Affairs and the LP1H for Health and Welfare. GPAs are generally much simpler and must follow a form set out in Schedule 1 of the Powers of Attorney Act 1971 or in a form to like effect but expressed as made under the Act. GPAs must also be made as a deed.
How the Attorneys are Appointed?
Where an LPA appoints joint attorneys, the attorneys can either be named to act jointly, jointly or severally, or jointly for some decisions and jointly or severally for others.
Under a GPA, joint attorneys can be named to act jointly or severally or jointly but unlike LPAs it is not possible to include an appointment of attorneys acting jointly for some decisions and jointly and severally for others.
Unlike LPAs, replacement attorneys cannot be named under a GPA. It is however possible to give the attorneys the power to appoint a substitute themselves. This power must be expressly stated in the GPA, it cannot be implied into the GPA. In reality, a power to appoint a substitute attorney is unlikely to be required. As the GPA can only be used whilst the donor has mental capacity, if the attorney does no longer want to act or can no longer act, the donor can easily make a new GPA.
Health and Welfare
A GPA can only be used by attorneys to make decisions on property and financial affairs. It cannot be used to make decisions on the donor’s health and welfare.