A General Power of Attorney is a popular tool in the UK for managing your financial affairs if you are unable to act for yourself. For clarity, ‘general powers’ in this context refers specifically to general powers of attorney in England & Wales. Many people use a general power to ensure someone trustworthy can act on their behalf, perhaps if you’re going abroad, recovering from an illness, or dealing with a short-term accident. But one question that often comes up is, “Can a general power of attorney be challenged?”
Understanding the Creation and Purpose of a General Power of Attorney
A General Power of Attorney (GPA) is a legal document designed to give one or more people, known as attorneys, the authority to manage the financial affairs of another person, called the donor. The main purpose of this is to ensure that someone you trust can act on your behalf if you are unable to manage your finances yourself, whether due to illness, an accident, or simply being out of the country for an extended period.
A general power can be tailored to suit your needs. You might grant your attorney broad authority to manage all your financial affairs, or you could restrict their powers to specific matters, such as handling a bank account or selling a property while you are abroad. This flexibility makes a GPA a practical solution for temporary situations where you are unable to act for yourself.
It’s important to understand the limitations of a general power. If the donor, however, loses mental capacity, becoming mentally incapable of making their own decisions, the GPA is automatically revoked. At that point, the attorney’s authority to act on your behalf ends. For ongoing protection, especially if you are concerned about future illness or the risk of lost capacity, it is essential to consider a lasting power of attorney.
There are two types of lasting powers of attorney: a property and financial affairs lasting power, which allows your attorney to manage your finances and property even if you lose capacity, and a welfare lasting power, which covers decisions about your health and medical care. Lasting powers of attorney must be registered with the Office of the Public Guardian before they can be used, providing an extra layer of oversight and protection.
Let’s bust some myths and give you the facts, so you can make informed decisions about your future.
Myth 1: “A General Power of Attorney Is Untouchable”
Fact:
A general power of attorney is a strong legal document, but it is not beyond challenge. Anyone with a legitimate interest, like a family member or another attorney, can question a general power if they suspect there was a problem with the way the document was made or used. If, for example, the donor did not have mental capacity at the time the general power was granted, the court may decide the document is not valid.
Tip:
Always make sure your general power of attorney is prepared with the help of an experienced solicitor who understands the requirements. At Grant Saw Solicitors, our team will guide you every step of the way.
Myth 2: “Challenges Only Happen if There’s Fraud”
Fact:
Fraud is one reason for a challenge, but it’s not the only one. The most common reasons for disputing a general power of attorney include:
- Lack of mental capacity: The donor must have full understanding when the general power is signed. If the donor loses mental capacity, the authority given by an ordinary power of attorney (another term for a general power of attorney) usually ends, and the attorney cannot continue to act.
- Undue influence: If someone pressured the person holding the general power, this can be challenged in court.
- Improper execution: If the document was not properly signed or witnessed, or if there were missing details, it may be invalid.
- More than one attorney: If you appoint multiple attorneys, all must act by your instructions.
Tip:
To reduce the risk of challenge, use a qualified solicitor to ensure the document is properly completed and witnessed.
Myth 3: “Only the Donor Can Cancel or Challenge the Power”
Fact:
You can cancel your general power of attorney at any time as long as you have mental capacity. But family members, interested parties, or even the public guardian can raise concerns in court if there is suspicion of misuse, lost capacity, or abuse of authority by the attorney.
Tip:
Choose your attorney wisely, keep your documents safe, and inform trusted people of your decisions. This can prevent issues before they reach the court.
Myth 4: “Challenges Always Mean Long Court Battles”
Fact:
Most disputes about a general power of attorney are settled with the help of a solicitor, sometimes with guidance from the Office of the Public Guardian. Court action is only needed if an agreement can’t be reached. Many concerns can be resolved quickly if you have clear documents and professional support.
Tip:
If you think your general power of attorney is being challenged or if you have concerns about someone else’s, seek advice from an experienced solicitor straight away.
General Power of Attorney vs Lasting Power of Attorney
A general power of attorney (or ordinary power of attorney) is only valid while you have mental capacity. If you become mentally incapable or lose capacity, the general power ends. For long-term planning, consider a lasting power of attorney. There are lasting powers for financial affairs and welfare lasting power for medical care and health decisions. Only a lasting power of attorney remains valid if the donor loses capacity.
How to Protect Your General Power of Attorney
To make your general power of attorney as robust as possible:
- Use a specialist solicitor to prepare the document.
- Make sure you understand every part before you sign.
- Keep up-to-date evidence of your mental health capacity at the time the general power is made.
- Explain your decisions to your family members and the attorney you appoint.
- Keep your documents safe and let others know where to find them if needed.
If you want to know more or need help to manage or challenge a general power of attorney, contact the Grant Saw Solicitors Private Client team for more information.
Conclusion
A general power of attorney is a flexible way to let someone you trust manage your financial affairs when you are unable to act for yourself. Most work perfectly well, but if you have doubts or need help, the right advice makes all the difference.
Need advice? Visit Grant Saw Solicitors for expert help with your General Power of Attorney. Protect your interests with confidence.