Ordinary Power of Attorney (England and Wales)

This document is to be used to create an Ordinary Power of Attorney (also known as an General Power of Attorney). The document is tailored for use in England and Wales. It is possible to create an Ordinary Power of Attorney in Northern Ireland via a different document. A Power of Attorney can also be created in Scotland, through a different process.

An Ordinary Power of Attorney is a formal document which can be used by one person or a company (a donor) to give power to another person or company (the attorney) or, sometimes, to multiple people/companies (the attorneys) to deal with affairs on their behalf. For example, a donor could use an Ordinary Power of Attorney to give power to an attorney for the purposes of:-

• dealing with property transactions on their behalf (for example, the purchase or sale of a property); or
• managing bank accounts or investments on their behalf; or
• executing shareholder transactions on their behalf; or
• attending commercial meetings on their behalf; or
• signing or executing documents on their behalf.

Common situations where an Ordinary Power of Attorney might be used are:-

• where the donor is travelling abroad for a period of time and requires the assistance of another person to manage their affairs; or
• where the donor has a physical illness which limits their ability to manage their affairs, or has a physical illness which requires them to remain in hospital for a period of time where they may be unable to deal with their affairs; or
• where a corporate donor is otherwise engaged and is unable to deal with a certain activity or transaction.

An Ordinary Power of Attorney can be created as a simple document to confer a broad (general) power from a donor to an attorney to manage their affairs generally. Alternatively, an Ordinary Power of Attorney can be created to give very specific powers to the Attorney (a Limited Power of Attorney). A Limited Power of Attorney might be used, for example, to give an attorney power to conduct a specific property sale.

There are limits on the sorts of powers which can be given to an attorney via an Ordinary Power of Attorney. For example, an Ordinary Power of Attorney cannot be used to give an attorney the power to carry out acts that relate solely to the donor's status (for example to carry out acts which are specific to a husband, wife, lawyer, doctor etc.) or to authorise acts which are unlawful/criminal.

In addition, there are different rules for trustees (those who have have been already given powers via a trust). Trustees, in general, can create an Ordinary Power of Attorney in order to delegate their trustee powers provided that:-

• the power is created pursuant to s.25 of the Trustee Act 1925; and
• It is not prohibited by the trust instrument; and
• the power is not given for more than twelve months; and
• any co-trustees are notified properly, either before or within seven days or the grant of the Ordinary Power of Attorney; and
• any person with the power to appoint new trustees is also notified properly in the same manner.

Pursuant to s.1 of the Trustee Delegation Act 1999, a trustee of land can delegate their functions as under an Ordinary Power of Attorney (rather than a Trustee Power of Attorney under s.25 of the Trustee Act 1925) provided that this is not prohibited by the trust instrument. Co-owners of land hold property on a statutory trust of land where the legal estate is held on trust for all those who hold a beneficial interest.

It is especially important to note that an Ordinary Power of Attorney SHOULD NOT be used:-

• Where the donor not have mental capacity or if the donor has been diagnosed with a illness which can lead to mental incapacity; or
• to give authority to the attorney in relation to a donor's health and personal welfare matters.

Instead, if a person wants to make arrangements for somebody to make decisions on their behalf or to manage their finances in the event that they become incapacitated, a Lasting Power of Attorney should be used (or, if signed before 1 October 2013, an Enduring Power of Attorney).

An Ordinary Power of Attorney does not need to be registered, and the power is created through the execution of the document as a valid deed.

It is useful to note that an Ordinary Power of Attorney can often be incorporated into other agreements (for example, as part of a transactional contract). In those circumstances, this document for a stand alone Ordinary Power of Attorney is not suitable.

How to Use This Document

This document can be used to create stand alone Ordinary Power of Attorney or a Trustee Power of Attorney. It should be completed with the full details, providing the accurate details for both the donor and the attorney.

The donor can be either:-

• an individual (including a trustee) provided that they have capacity; or
• a corporation (including a corporate trustee) provided that the corporation has a legal personality separate from its members (for example, a UK incorporated company or LLP).

The attorney can be:-

• an individual. An individual attorney must: have capacity; not be a minor; and must not be bankrupt.
• a corporate entity. A corporate attorney must have a legal personality separate from its members (for example a LLP or UK incorporated company) and must be permitted by its constitution/articles to act in such a capacity.

The document takes the form of a deed and in order to take effect it must be executed properly as a deed (as specified by s.1 of the Powers of Attorney Act 1971).

For a donor who is an individual, as per s.1 of the Law of Property (Miscellaneous Provisions) Act 1989, a deed must be executed by either:-

• the donor signing the document in the presence of a witness who attests their signature; or
• the donor directing the signature of the document, which then must be signed in the donor's presence and in the presence of two witnesses who each attest the signature. This option may be selected where the donor is not physically able to sign the document due to a physical impairment, for example.

For a corporate donor that is a UK company, the document must be executed by either:-

• the signature of two authorised signatories (i.e two of its directors or one director and the company secretary); or
• the signature of one director in the presence of one witness who attests the director's signature; or
• the affixing of the company's common seal upon the document.

For a corporate donor that is a Limited Liability Partnership, the document must be executed by either:-

• the signature of two members of the LLP; or
• a single member of the LLP in the presence of an attesting witness; or
• the affixing of its common seal.

Care should be taken to ensure that the document is correctly witnessed, and that the witness is suitable and is legally able to witness the document.

It is important to note that an Ordinary Power of Attorney will generally, save for in the cases of irrevocable powers of attorney and trustee powers of attorney, be terminated in any of the following circumstances:-

• upon the death or mental incapacity of an individual donor or attorney
• where there are multiple attorneys appointed jointly, upon the death or mental incapacity of one attorney;
• upon the bankruptcy of an individual attorney or donor; or
• through agreement between the donor and attorney; or
• upon the dissolution or winding up of a corporate donor or attorney; or
• through the donor revoking the power of attorney (usually through a deed of revocation); or
• by a timeframe specified within the deed which creates the Ordinary Power of Attorney.

It is possible to create an irrevocable Ordinary Power of Attorney (which cannot be revoked without the attorney's consent and is not subject to the usual termination rules as described above) if:

• the power is given for the purposes of securing a proprietary interest of the attorney OR the power is given for the purposes of securing the performance of an obligation owed to the attorney AND the power explicitly states that the power is irrevocable (s.4 of the Powers of Attorney Act 1971).

Relevant Law

The main statute governing Ordinary Powers of Attorney in England and Wales is the Powers of Attorney Act 1971

The main statute governing trustee Ordinary Powers of Attorney in England and Wales is the Trustee Act 1925.

The main statutes governing the execution of deeds in England and Wales are:

• The Law of Property (Miscellaneous Provisions) Act 1989
• The Companies Act 2006;

Help from a lawyer

You can choose to consult a lawyer if you need help.

The lawyer can answer your questions or help you through the process. You will be offered this option when you complete the document.

How to modify the template

You fill out a form. The document is created before your eyes as you respond to the questions.

At the end, you receive it in Word and PDF formats. You can modify it and reuse it.