Attorneys act on someone else's behalf, either on their instructions or in their best interests where that person has lost capacity. It is important to note that there are different types of power of attorney. The type that most people are familiar with is Lasting Powers of Attorney (or Enduring Powers of Attorney before 2006). These documents allow a person, when they have capacity, to appoint someone who can act on their behalf (their attorney) in relation to financial or property matters. The documents are named lasting or enduring powers of attorney because that authority continues even after the donor has lost mental capacity, at which point the attorney is required to act in the donor's best interests, rather than on their instructions.

General powers of attorney,  or powers of attorney granted for specific purposes also allow someone to appoint an attorney to act on their behalf. With these documents there is no requirement for registration and so they can be put in place quickly to enable an attorney to act on specific issues. These types of powers of attorney end immediately however if the donor loses capacity. It is in fact a requirement that the donor have capacity when the document is made and retains it throughout its use so they can instruct and direct the attorney. There is no suggestion that the attorney acts in the donor's best interests as they should always be acting on the donor's instructions.

When it comes to acting on the donor's behalf in relation to their role as a trustee, it is possible for the trustee to appoint an attorney to act on their behalf. Powers of attorney granted by trustees however are limited in time, and can only be granted for a period of up to 12 months, after which it would need to be reissued. As with all powers of attorney, the donor has to have capacity when they grant the power of attorney and so, if the donor loses capacity they will be unable to regrant the authority following the 12 month period.

As with anything involving trusts, it is always necessary to check the trust deed to ensure that this does not prohibit trustees from appointing attorneys to act on their behalf. If it does, then the trustee could not appoint an attorney without arranging for the trust deed to be altered which may be possible through agreement with the other trustees or which may require a court order if the trust deed does not permit trustees to alter its terms.

There are therefore very limited circumstances where a trustee is able to appoint an attorney to act on their behalf, however it is important to note that a Lasting Power of Attorney would never be sufficient for this purpose.

If you would like advice or guidance on your role as a trustee, or the powers granted under a power of attorney then please contact Ashley Minott on 01494 893518 or by email.