What is a Power of Attorney (PoA) and do I need one?
In Scotland a Power of Attorney (PoA) is a legal document giving someone else the authority to take actions or make decisions on your behalf. You can have this document drawn up at any time when you have capacity to do so. In the document you will be called the grantor, and your affairs will be looked after by your attorney(s).
You can create two types of PoA – a Continuing PoA and a Welfare PoA.
A Continuing PoA allows you to choose someone to make decisions in relation to money and property and this power can either begin immediately or at a later date when capacity becomes an issue.
A Welfare PoA allows you to choose someone to make decisions about your health and personal welfare and these powers are only ever used if you lose capacity to make these decisions for yourself.
A solicitor should be able to assist you to draw up a PoA. The PoA must include a certificate signed by a solicitor or by a registered medical practitioner stating that you are capable of understanding the PoA and that you were not put under any undue pressure to make it. This prevents your capacity to put a PoA in place being challenged at a later date.
Who should you appoint?
When appointing an Attorney you should consider:
- how well you can trust the person
- how well you know the person
- how well the person looks after their own financial affairs
- how comfortable they will be carrying out the role
It may be a good idea to appoint more than one person to help prevent abuse of the responsibility or to share the responsibility.
When choosing a person you can appoint someone to deal with financial matters and someone different to deal with personal welfare. Alternatively you could give your attorneys powers over your financial affairs and your welfare matters.
You can consider appointing a relative, friend or a professional person such as a solicitor or accountant, or a combination.
If your attorney is not able to act for you when required a new PoA will need to be drawn up and you can only do this if you have capacity to do so. Having more than one attorney named in the initial document is therefore good practice.
Registering a Power of attorney
If the PoA has been drafted under the terms of the Adults with Incapacity (Scotland) 2000 Act, you must register it with the Office of the Public Guardian (OPG) before it can be used. This provides additional safeguards in that the operation of a PoA can be monitored by the OPG if necessary.
Cancelling Powers of Attorney
If you change your mind (while you still have capacity) you can cancel your PoA and appoint a different attorney or change the powers granted.
What happens if I don’t have a Power of Attorney?
If you become incapacitated, a person with an interest in your affairs may apply to the Sheriff Court to act on your behalf. This person is called a Guardian. This process takes time, entails higher costs and you ultimately rely on the Court to appoint the most appropriate person. Given the relatively small costs involved in putting a PoA in place this remains the preferred route.
To discuss this further call Julie McMahon on 0141 274 1108 or email julie.mcmahon@morton-fraser.com.
