A Power of Attorney is a legal arrangement whereby someone or something (called the Donor) gives authority (something authored/written) to another or others (called the Donee(s) or Attorney(s)) to act on their behalf and to make decisions with regard to their financial affairs and/or their personal welfare. Note that a Power of Attorney Deed of Appointment is a private licence you create allowing someone or something to do something that would otherwise be illegal or criminal. Also note that an Attorney created under a Power of Attorney Appointment Deed is measured by his/her/its competence. Competence is a very important word when speaking power of attorney language. You surrender or gift Power of Attorney to people and organisations every day unknowingly. We’ll come back to competence…
An Ordinary Power of Attorney is usually created in circumstances where the Donor wishes someone else to act on their behalf in a situation where they are unable or decline to to act for some reason. An Ordinary Power of Attorney cannot be used in cases where the Donor has lost their mental capacity and will automatically terminate on loss of capacity. A Lasting (or Enduring) Power of Attorney is used in these circumstances. However, it must be created before the incapacity arises.
An Ordinary Power of Attorney may be either general (unlimited except by law) or limited (special) to specific affairs. A General Power of Attorney in terms of Section 10 of the Powers of Attorney Act 1971 gives the Attorney(s) an almost unlimited power over the Donor’s affairs and should therefore be used with great caution. It cannot be used in respect of any jointly owned property, any functions acting as trustee, personal representative or a tenant for life under the Settled Land Act 1925.
The Donor may appoint more than one Donee/Attorney to act on his behalf. These Donees/Attorneys can either act independently of each other or they can act together. Where the authority is joint and several, any of the Attorneys can sign any authority documentation on behalf of the Donor individually, whereas if the authority is joint, every one of the Attorneys must sign the authority documentation.
The Ordinary Power of Attorney need not be registered and will usually terminate either on a specified date or where the Donor expressly revokes the Power of Attorney by executing a Deed of Revocation. Important!
We have seen PoA in the UK arises under legislation from the authority of the Power of Attorney Act 1971. This recognises the equitable granting of powers – but we’ll save that for another day. Get your head round the legislative basics then we can later develop this further and demonstrate just how critical it is for everyone to know and comprehend…
Its not a big Act in size but once you start to understand its implications you will quickly realise that this is the single most important piece of legislation on the books, bar none!
This is the power that Government (local and national) claim to wield. They have assumed Power of Attorney over each and every one of us. This isn’t necessarily a bad thing in general terms but that implied authority/power is not strictly defined and this the Donee is able to abuse those powers. This is because we have not defined the powers we are gifting to them. Returning to the Power of Attorney Act 1971, it’s what it doesn’t say between the lines as well as the carefully sculpted content where we have to interpret. Do you think the power brokers would actually lay it all out for us in an easy to read way?
Did you know when you sign a mortgage contract, for example, you are handing over power of attorney to the finance company, who can in turn further donate these powers as long as they can argue it complies with contract terms? In other words they can take you cash and assets and invest them and do with the capital and profits as suits them. How many people know that you have surrendered those powers and how many can state the level of powers that you surrendered? Note the use of the word ‘surrendered’ here. This is the correct word to employ.
Any court or tribunal is simply an exercise of PoA. The Crown will assume it has an over-riding PoA over both parties, with the Judge (independent arbitrator Attorney) representing the Crown. You have agree to this by being a Citizen. Both litigant and respondent parties are deemed to be legal persons acting as PoA for the corporation or living beast that has been dragged to that room. The judge in a court of law is merely assessing the level of negligence and incompetence of the parties upon which to base his/her decision. It really is that simple when you take the theatre apart.
There are number of options available to you once you understand the very simple concept of PoA. Knowledge is indeed power! How many knew that sentence is in itself a direct reference to power of attorney? You do however need to avail yourself of the equitable and legal definition of the word ‘power’. Very important!
Now, we could expose the whole PoA abuses all day but we’ll probably leave specific instances for a later post if readers want it. For now we will just re-enforce the concept that a PoA can be surrendered or gifted by Deed (document) or deed (action or inaction). The 1989 amendment to that 1971 Act, section 1, does exactly that. It removed the requirement for a Deed granting PoA requiring a formal Seal and professional Witness. Why did they remove that? The bankers and finance trading houses in our loans and mortgages etc had a field day after that as they could then trade our assets on our behalf without having to actually tell anyone or have it recorded. They could trade and hyopthecate and securitise and re-securitise our current and future wealth. It can be argued that the formal process of Seal and signature was slow and cumbersome and a new 21st century trading floor needed to act in nano-seconds to changes in the markets, but at what social price?
Note that by innocently doing something or not doing something you could now be enmeshed in a web of problems. Once you study this subject you will see PoA everywhere. An example is a Driving Licence (your legal person is the legally competent person licenced to be in charge of the beast so if the beast does something wrong it is the Attorney that takes the kicking for negligence and incompetence). The performance of the Donee/Attorney driving (commanding) the physical beast behind the wheel of the vehicle will be valued in points being deducted from the licence so as to warn others, such as vehicle insurance policies, that he is a risk.
Now the reason we discuss PoA goes back to my earlier post about financial words replacing legal definitions. If you revisit ‘authority’ you’ll see that this is in every case authority granted by you or surrendered of gifted by you to a separate body to act on your behalf in a general or limited capacity. In almost all instances this is a surrender of powers by you, knowingly or unknowingly, however national emergency and military law can over-ride the requirement for your express or implied consent.
This is the cruncher! You surrender power by doing or not doing something.Did you know that for Power of Attorney the parties have to be identified? For me to assume Power of Attorney over you I would need your name, address, and some other means by which to specifically point you out in a crowd. This could date of birth or a national insurance number or other such numeric registered identifier. If you want to prevent someone adopting Power of Attorney over you it really is as simple as never, ever, ever surrendering your details to them. Never admit to a name or address of anything else until such time as you are comfortable doing so. If you are told you need to identify yourself by someone you can be assured that they are presuming (offering) Power of Attorney, and when you obediently provide the details requested you have allowed them to legally assume (take) Power of Attorney. Try it. Use alias names and jealously guard your private information. This is exactly what large corporations do when they act through a veil of companies and jurisdictions – and it works for them. You CAN do the same even at a much smaller scale. So what if it confuses people! Your job is not to make a pencil pusher’s life easier. Your job is to protect yourself and your assets. Only when you want to enter into a Power of Attorney relationship should you provide that information; and just for kicks don’t let it be unsaid – let them know you are granting Power of Attorney and make sure you do it by Deed of Appointment. You are now acting competently and removing all presumptions and assumptions!
Section 3 of the 1971 Act is the most important part of the most important Act (!!) because that is where the exit door is! I’ll explain that shortly if you can’t see it from reading it. We’ll discuss ‘revoking powers’ and ‘discharging duties and obligations’ in the next post. Most governments have been particularly sneaky here. You’ll start to see human rights in their true light and it is all about a formal transfer of power and authority from Us to Them. Again, more to come.
In the meantime read up on PoA and read that Act very very carefully. There is a PoA Appointment Deed template in the end of that Act that you can adapt and butcher to suit your needs. We’ll post it up on the new website when its finished for you to download as a legal template.
It is critically important that you now do not presume the meaning of words. As you consider ‘power’ and ‘attorney’ and ‘of’ and ‘authority’ and ‘deed’ you really must refer to a legal dictionary, a commercial dictionary and a financial dictionary. It is also a good exercise to cross-reference with a military dictionary too. Many of these words have different meanings in differing situations. ‘Court’ being by far the best example. There are free online dictionaries and also good older dictionaries covering every subject on archive.org for free. You have no excuse for not knowing about Power of Attorney and it is really quite intuitive. You do it naturally every day with your family and friends and workmates. Now we are just formally recognising it.
We will post up more on this subject however we would welcome anyone to share their own research and ideas with us. This is not just an academic exercise; as you will see this is how you can now flex your muscles and start re-defining what powers you have actually (in deed) surrendered. Its also surprisingly simple to do and you can adapt simple templates…it does require a working knowledge and a vocabulary first though.