Many people assume a Power of Attorney is only required when you reach a certain age or have a long-term illness. However, no one can know what the future will hold, and a Power of Attorney can be a safeguard that you may need to rely on when you least expect to.
A Power of Attorney gives the Attorney the power and permission to make decisions on your behalf. This includes decisions about your finances and property, as well as your health and personal welfare. Without one, your family and / or friends would require to apply to a court to have a guardian appointed, which can be a lengthy, costly and potentially stressful process.
We recommend that everyone have a Power of Attorney regardless of their age. You may never require to use it, but it does allow you to make the decision about who you want as your Attorney and can be of benefit to your loved ones if something were to happen to you.
Who should I appoint?
You can appoint any person over the age of 16. Due to the potential wide powers that may be available to your Attorney it is vital that you appoint a trusted person who knows and understands your needs and wishes.
You can appoint one or even several substitute Attorneys to take over if your original Attorney cannot continue to act. Furthermore, joint Attorneys can be appointed but consideration should be made as to whether they must jointly agree on all decisions, or they can agree on decisions that are made together but they can also act alone (joint and several). Appointing multiple Attorneys may create conflict if they must agree on all decisions to be made.
Due to the safeguarding duty placed on the Attorney and the fact they must observe certain principles as set out in the Adults with Incapacity (Scotland) Act 2000, including following a Code of Conduct, before granting a Power of Attorney you should discuss your intentions with the proposed Attorney to ensure they are happy to accept the role. An Attorney is obliged, as part of the registration process, to state that they is prepared to take on the role of Attorney and accepts the incumbent duties.
Broadly, there are 3 different types of Power of Attorney:
1. Continuing Power of Attorney
2. Welfare Power of Attorney
3. Non-continuing (basic) Power of Attorney
(It is common for the Continuing and Welfare Powers of Attorney to be incorporated in to one document.)
Continuing Power of Attorney
The general powers in a Continuing Power of Attorney provide that your Attorney can do anything in relation to your financial, property and legal affairs that you could do personally. These powers can include:
• The purchase and sale of property
• Opening, operating, and closing bank accounts
• Dealing with investments
Should you wish, continuing financial powers can be used by your nominated attorney immediately after the Power of Attorney has been registered with the Office of the Public Guardian. This does not prevent you from continuing to deal with your own financial affairs, and you can do so until such time as a loss of capacity has occurred.
However, if you wish your Attorney to act only in the event of your incapacity, it must be clearly stated that the powers are not to be used this until incapacity has been confirmed. You may wish to state who should make any decision about your incapacity. Sensibly many people nominate their GP or other suitably qualified medical professional.
Welfare Power of Attorney
A Welfare Power of Attorney covers decisions about health and personal welfare. This Power of Attorney enables your Attorney to make decisions about your health and welfare after you become incapable of making those decision for yourself. Your Attorney can not intervene whilst you still have capacity to make the decision.
These powers can include:
• deciding where you should reside
• deciding what type/level of care you are to receive
• refuse/consent to medical treatment on your behalf
• make decisions about your daily routine, health, wellbeing, diet, dress and personal appearance
• make decisions on which activities, social, community and cultural activities you partake in
The role of the Office of the Public Guardian
All Continuing and Welfare Powers of Attorney once prepared, whether stand alone or combined, require to be registered with The Office of the Public Guardian. The applicant requires to submit a completed registration form and a certificate of capacity. The certificate of capacity must be signed by a Solicitor or Doctor practicing in Scotland confirming that:
• He/she has interviewed the Granter immediately before the Power of Attorney was signed;
• He/she is satisfied that the Granter fully understands the purpose, nature and extent of the Power of Attorney and the decision-making power that any Attorney would have as a result;
• He/she has no reason to believe that the Granter is acting undue influence.
In addition to administering the process of Power of Attorney registration, the Office of the Public Guardian has a supervisory duty and has the power to investigate and act accordingly in instances where concerns are raised that an Attorney may not be acting in a granter’s best interests or is abusing his/her position as Attorney.
Non-continuing (basic) Power of Attorney
This is the most straightforward form of Power of Attorney and is generally used for specific purposes, with very limited powers, for example people working abroad or on holiday and they require someone to deal with specified personal affairs in their absence. The most common being a Power of Attorney to sign documents in relation to a sale of a property.
This type of Power of Attorney is basic, limited in its use and it cannot be used if you later suffer from mental incapacity.
A non-continuing Power of Attorney does not require to be Registered with the Office of the Public Guardian.
Esson & Aberdein have a dedicated specialist Private Client department, so please do get in touch should you require advice – email@example.com