Ordinary Power Of Attorney

What is an Ordinary Power of Attorney?

An Ordinary Power of Attorney is a straightforward and flexible legal instrument. Unlike a Lasting Power of Attorney (LPA), which continues to be effective even if the donor loses mental capacity, an OPA is only valid while the donor retains mental capacity. This means that the donor must be capable of understanding and making their own decisions at the time the document is executed and for as long as the OPA remains in effect.

The attorney can be authorised to manage a wide range of activities on behalf of the donor, including but not limited to:

• Managing bank accounts
• Paying bills
• Collecting benefits or pension
• Handling investments
• Buying and selling property

Legal Requirements for Creating an Ordinary Power of Attorney

Creating an ordinary power of attorney requires adherence to specific legal requirements to ensure its validity.

1. Capacity: The donor must have the mental capacity to understand the nature and extent of the powers they are granting. This is crucial, as the OPA becomes invalid if the donor loses mental capacity.
2. Form: While there is no prescribed form for an OPA, it should be clearly drafted, specifying the powers being granted and the duration of those powers if they are not intended to be indefinite.
3. Execution: The document must be signed by the donor and, ideally, witnessed by an independent party to validate the execution process. Although not mandatory, it is advisable to have the document witnessed to prevent disputes about its authenticity.
4. Revocation: The donor can revoke the OPA at any time, provided they still have the mental capacity to do so. The revocation should be made in writing and communicated to the attorney and any relevant institutions or parties.

Choosing an Attorney

It’s crucial to carefully choose the right person to act as an attorney. The attorney should be someone the donor trusts completely, as they will be responsible for managing important aspects of the donor’s affairs. Usually, donors select close family members, friends, or professionals such as solicitors or accountants.

Considerations for Choosing an Attorney

• Trustworthiness: The attorney must act in the best interests of the donor and manage their affairs with integrity and honesty.
• Capability: The attorney should be capable of handling the responsibilities involved, which may require financial acumen and a good understanding of the donor’s needs.
• Availability: The attorney should be readily available to carry out the required tasks and not be too burdened by their own commitments.
• Willingness: The person chosen should be willing to take on the role and responsibilities of an attorney.

Scope and Limitations of an Ordinary Power of Attorney

An ordinary power of attorney can be customised to meet the donor’s specific needs. Depending on the donor’s requirements, the scope of the powers granted can be wide or limited.

Scope of Powers

• General Powers: An OPA can grant general powers, allowing the attorney to manage the donor’s financial and legal affairs. This might include handling all bank accounts, investments, and property transactions.
• Specific Powers: Alternatively, the donor may choose to grant specific powers, limiting the attorney’s authority to particular tasks, such as managing a specific bank account or selling a property.

Limitations

• Duration: An OPA is only valid while the donor has mental capacity. If the donor loses capacity, the OPA becomes void, and the attorney can no longer act under its authority.
• Revocation: The donor can revoke the OPA at any time, provided they have the mental capacity to do so. This provides the donor with a safeguard, allowing them to withdraw the attorney’s powers if they choose.

Advantages of an Ordinary Power of Attorney

There are several advantages to creating an ordinary power of attorney:

1. Flexibility: OPAs are highly flexible and can be customised to fit the donor’s specific needs, granting either broad or narrow powers to the attorney.
2. Convenience: They provide a convenient way for donors to ensure their affairs are managed in their absence, such as during a prolonged holiday or a temporary period of incapacity.
3. Control: The donor retains control, as they can revoke the OPA at any time and continue to make decisions alongside the attorney while they have mental capacity.
4. Peace of Mind: Knowing that a trusted person is authorised to manage their affairs can provide significant peace of mind for the donor.

Potential Risks and Mitigation

While an ordinary power of attorney offers many benefits, there are also potential risks that should be considered:

Risks

• Abuse of Power: There is a risk that the attorney may misuse their authority, either intentionally or due to a lack of understanding of their responsibilities.
• Mistakes and Mismanagement: The attorney may make errors or poor decisions that could negatively impact the donor’s finances.
• Disputes: Family members or other parties may dispute the attorney’s actions, leading to potential legal conflicts.

Mitigation

• Choose Wisely: Select an attorney who is trustworthy, capable, and willing to act in the donor’s best interests.
• Clear Instructions: Provide clear and detailed instructions within the OPA to guide the attorney’s actions and limit their powers if necessary.
• Regular Reviews: Review the OPA and the attorney’s actions to ensure everything is managed appropriately.
• Professional Advice: Seek professional advice from solicitors, such as DLS Solicitors, to ensure the OPA is properly drafted and executed and to address any concerns about the attorney’s actions.

The Role of a Solicitor in Creating an Ordinary Power of Attorney

Engaging a solicitor to assist with creating an Ordinary Power of Attorney is highly recommended. At DLS Solicitors, we provide comprehensive services to ensure the OPA is tailored to the donor’s needs and complies with all legal requirements.

Benefits of Using a Solicitor

• Expert Guidance: Solicitors offer expert guidance on the legal implications and best practices for creating an OPA.
• Customisation: We can customise the OPA to fit the donor’s specific needs and circumstances, ensuring it grants the appropriate powers.
• Legal Compliance: Solicitors ensure the document complies with all relevant laws and regulations, reducing the risk of disputes or invalidity.
• Peace of Mind: Knowing that the OPA has been professionally drafted provides the donor and their family peace of mind.

Common Scenarios for Using an Ordinary Power of Attorney

Ordinary powers of attorney can be helpful in a variety of scenarios.

Extended Travel

Individuals who plan to travel abroad for an extended period may create an OPA to ensure their financial affairs are managed in their absence. This can include paying bills, managing investments, and handling any legal matters that may arise.

Temporary Illness or Injury

An OPA can be invaluable if the donor experiences a temporary illness or injury that impairs their ability to manage their own affairs. The attorney can manage finances and ensure all obligations are met during the recovery period.

Business Purposes

Business owners may use an OPA to delegate authority to a trusted colleague or professional to manage business affairs during their absence. This ensures continuity and the smooth operation of the business.

Convenience

Even without travel or illness, some individuals may prefer to delegate certain tasks to a trusted attorney for convenience. For example, an elderly person might use an OPA to have their adult child manage their banking and bill payments.

Conclusion

An ordinary power of attorney (OPA) is a flexible tool that can help individuals temporarily manage their legal and financial affairs.

At DLS Solicitors, we know how important it is to create a document that meets the donor’s specific needs, providing peace of mind and security.

By choosing a trustworthy attorney, providing clear instructions, and seeking professional legal advice, donors can reduce potential risks and ensure their affairs are managed appropriately in their absence. An OPA can be helpful for travel, temporary incapacity, business purposes, or convenience.

We encourage anyone considering an ordinary power of attorney to consult with us at DLS Solicitors. Our experienced professionals are dedicated to providing comprehensive legal advice and ensuring that your OPA is crafted with precision and care, safeguarding your interests and giving you confidence that your affairs are in good hands.