Legal status by country
In English and Welsh law, anyone with capacity can grant a power of attorney. These can be general (i.e., to do anything which can legally be done by an attorney), or relate to a specific act (e.g., to sell freehold property). A power of attorney is only valid while the donor has the capacity to ratify the attorney's actions, unless it is made in the form of a lasting power of attorney and registered with the Office of the Public Guardian. This new form of power of attorney was introduced in 2007 under the Mental Capacity Act 2005 and replaced the former enduring power of attorney, although EPAs correctly made before the law changed are still valid. EPAs only need to be registered if the donor has since lost capacity.
It should be noted that many of the provisions in the earlier paragraphs above use terminology different from either common UK usage or terms used in the Mental Capacity Act 2005. Examples are enduring power of attorney, advance directive, and notary public.
Irish law there are two forms of power of attorney:
- Power of attorney, which may be general or specific, which ceases once the donor becomes incapacitated
- Enduring power of attorney, which takes effect once the donor is incapacitated
The death of the donor ends both.
The relevant legislation is the Powers of Attorney Act 1996 and the Enduring Powers of Attorney Regulations 1996 (SI No. 196/1996) as amended by SI No. 287/1996. Part 7 of the Assisted Decision-Making (Capacity) Act 2015 provides for new arrangements for those who wish to make an Enduring Power of Attorney and once the 2015 act is commenced, no new powers of attorney will be created under the 1996 act.
A solicitor is not necessary when creating Power of Attorney - it can be created when signed by the donor in the presence of a witness.
Creating an Enduring Power of Attorney requires the following:
- it must be in a particular format
- a statement from a doctor stating that the doctor thought the donor had the mental capacity to understand the effect of creating the power of attorney when the document was executed
- a statement from the donor to say that they understood the effect of creating the power
- a statement from a solicitor to say they are satisfied that the donor understood the effect of creating the power of attorney
- a statement from a solicitor to say the donor was not acting under undue influence
The process of creating Enduring Power of Attorney is complex and courts have a general supervisory role in the implementation of the power.
Irish law there are two forms of power of attorney:
- Power of attorney, which may be general or specific, which ceases once the donor becomes incapacitated
- Enduring power of attorney, which takes effect once the donor is incapacitated
The death of the donor ends both.
The relevant legislation is the Powers of Attorney Act 1996 and the Enduring Powers of Attorney Regulations 1996 (SI No. 196/1996) as amended by SI No. 287/1996.Part 7 of the Assisted Decision-Making (Capacity) Act 2015 provides for new arrangements for those who wish to make an Enduring Power of Attorney and once the 2015 act is commenced, no new powers of attorney will be created under the 1996 act.
Under Russian law, specifically art. 185 of the Russian Civil Code, a power of attorney may be executed under hand or in notarial form.The power of attorney to act must be notarially executed. Notarial execution is required for any power of attorney made for concluding a contract subject to special public recordation, namely those dealing with interests in immovable property.
A power of attorney, pursuant to art. 186 of the Russian Civil Code, must also be dated.Any POA without an express date of execution is void.
A power of attorney can be irrevocable. The grantor may terminate the POA at any time at his or her sole discretion. Any waiver of this right is void, as provided by the Civil Code.
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