raeburn christie clark&wallace solicitors & estate agents

Power Of Attorney

Contemplating a time when you are no longer able to make your own decisions is a daunting prospect. It is estimated that around 90,000 people in Scotland have dementia  and that this figure is set to rise in the coming decades. It is thought that by 2025, one million people in the UK will be suffering from the illness . Furthermore, your ability to deal with your own affairs can be impaired at any time due to unforeseen circumstances. Having a Power of Attorney in place can make things easier for both you and your family.


What is a Power of Attorney?


A Power of Attorney is a document that appoints another person (your Attorney) to make decisions on your behalf and to manage your affairs. There are two strands to a Power of Attorney - Continuing (financial) and Welfare. It is usually recommended that both are put in place at the same time in order to ensure all eventualities are covered.
The Continuing part provides the Attorney with a range of powers allowing them to deal with your finances. For example, they are empowered to manage your bank accounts, sell any property you may own, make decisions regarding your investments or oversee your business in your place.
The second strand essentially allows your Attorney to deal with your day-to-day welfare and healthcare such as consenting to or refusing medical treatment for you or deciding where you will live.

These welfare powers could only be used if a medical professional were to certify that you no longer have the capability to make these decisions for yourself. The Attorney, with your authority, can use the financial powers any time after the document is in place.


Who should you appoint?


The main point to stress is that you must have absolute trust in those appointed as they will have the power to make many important decisions and act as if they were you for a number of purposes.  It is recommended that you consider appointing more than one Attorney, so they can all assume the role, or with someone appointed as a substitute who can step in should the first named person be unable to act.


Are safeguards in place?


When putting in place the document, a Solicitor or medical professional requires to meet you to certify that he or she is satisfied you have the requisite capacity to sign the deed and are not under any undue influence to do so. There is also a Code of Practice and guiding principles, which an Attorney must follow including that any decisions made should be for your benefit and your past and present wishes should be taken into account.
Before it can be used, a Power of Attorney requires to be registered with a body called the Office of the Public Guardian. They can supervise Attorneys and investigate complaints made regarding their actions. If they have concerns, they can request the Attorney provides a full accounting of their dealings with your finances.

What happens if there is no Power of Attorney?


If an adult loses capacity, it can be impossible for the family to manage his or her affairs, and they do not automatically have the authority to do this without a Power of Attorney in place. Someone would require to apply to the Court to be appointed as your Guardian, which is a far more expensive and time-consuming process. It is also more invasive, with medical professionals and social workers being required to interview you and submit reports to the Court. It would then be for the Sheriff to decide who should act as your Guardian, whereas with a Power of Attorney you are the one deciding who will assume the role and can appoint someone you trust. If a Power of Attorney is already in place, the Attorney of your choosing can assist you as a matter of convenience whilst you still have capacity, but can also intervene quickly should capacity be lost.


In Summary 


Although it is not an easy prospect to consider, there may come a time when you are rendered incapable of dealing with your own finances or welfare. It is never too early to put in place a Power of Attorney and doing so can give you and your family peace of mind that your affairs are in order should illness or injury strike.

Useful Links

Elderly Client Advice 

Guardianships & Adults with Incapacity

Wills & Tax Planning

 

Your main contacts

Douglas Crombie

Partner

01224 332400

Email

Amy Watson

Associate

01224 332456

Email

Douglas Crombie

Partner

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