The following two sentences sum up why it is never too early to draft a Power of Attorney.
Client: "I don’t need a Power of Attorney because I am young. If I look like I might need it in the future, I’ll draft it then."
Lawyer: "I’m sorry but you can’t think about a Power of Attorney for your relative now, because they’ve already lost capacity. We’ll now need to think about a court application for appointment of a Guardian. That will be more expensive, and less flexible than a Power of Attorney, but we don’t have any other option".
None of us have a crystal ball. It is impossible to predict the future. Some of us will be affected by long term mental deterioration. Some of us will be affected by an acute medical condition which means there is an immediate incapacity.
In both of these scenarios, you can provide a Power of Attorney allowing others to look after your financial matters and your welfare matters. There are safeguards in place which protect you. Your Attorney cannot step in and start acting on your behalf, if you can do this yourself. We always hold a client’s Power of Attorney in our safe, to ensure that it is kept in a place which it can be accessed if it is needed, but it isn’t lying around at home. We discuss with clients whether they wish to register the Powers of Attorney with the Office of the Public Guardian straightaway or wait until they are needed. Until they are registered, they can’t be used.
Your Attorney can be given the powers you want them to have. This can include the power to carry out tax planning for you. If you don’t draft a Power of Attorney when you “have capacity” to do so, by which we mean that you understand who you are appointing and why, it is too late. The Powers of Attorney we have in Scotland are different to those in England. You do need a solicitor to help you with the drafting in Scotland. The costs are also not as severe as they are in England.
Nevertheless, they are important documents, and whilst we hope that they will never be needed, they are worth it.