We were really worried to hear this, in case it puts people off granting Powers of Attorney. We remain convinced that they are good planning for clients, and are keen to reassure you as to why everyone should have one, regardless of age and stage of life.
What is a Power of Attorney?
A Power of Attorney is a document that gives a trusted person (or people) authority to take action or make decisions on your behalf, if there ever comes a time when you are not able to do so yourself.
There are two types of Powers of Attorney in Scotland: a Continuing Power of Attorney which covers property and financial matters; and a Welfare Power of Attorney which covers health and welfare matters.
Why grant a Power of Attorney?
If you lose capacity to make decisions for yourself, it is a common misconception that a spouse or next of kin can take over, but this is incorrect. If you haven't appointed an Attorney to act for you, then your assets may be frozen until such time as the Court can appoint someone to act for you. That person is called a Guardian and the Court decides who should be appointed. A Guardian is similar to an Attorney, but because they haven't been appointed by you, the Court will need to keep an eye on what they are doing, and this is done by the Office of the Public Guardian (OPG). The OPG is an officer of the Court, and they will ask the Guardian to provide them with a management plan which must be approved by them, as well as annual accounts showing what they have done.
The Guardianship process is expensive, time consuming and can be stressful.
We believe that everyone should decide who they want to appoint, and they are able to step in immediately if needed. A Power of Attorney is the way to do this. Having a Power of Attorney could save money and stress.
What safeguards are in place in Scotland?
There are fundamental differences in the way Powers of Attorney are governed in Scotland and England and Wales.
Once you have taken the decision to prepare a Power of Attorney, an assessment of your capacity is required at the time of signing the document. Under Scots law, this can only be carried out by a solicitor, doctor or advocate who must certify that you understand what a Power of Attorney is, what powers you are granting and that you are not under any undue influence to grant the Power of Attorney. In contrast, the English Power of Attorney system allows individuals to simply complete a form online and submit it for registration.
A similar mental capacity certificate must also be completed in England and Wales however the law is significantly more relaxed in that anyone who knows the Granter personally for at least 2 years (such as a friend, colleague or neighbour) can sign the certificate. As there is no requirement to seek professional advice, vulnerable people are at greater risk of coercion without understanding the powers they are granting.
In contrast to the form-filling exercise in England and Wales, the majority of Powers of Attorney in Scotland are drafted by Solicitors following a detailed and private discussion. The powers are directive meaning that the Granter can be as specific as he/she likes and can incorporate restrictions and instructions. A well drafted Power of Attorney will protect the Granter as it is entirely up to them to decide what powers to grant.
Similar to south of the border, Powers of Attorney cannot be used until they are registered with the OPG. The OPG must maintain a central register of Powers of Attorney and has power to remit any matters of concern to the Court. The OPG has published a Code of Practice which assists Attorneys with their roles. Although not legally binding, failure to act in accordance with its terms may result in an investigation by the OPG into the continuing suitability of an Attorney's appointment.
Does this apply to you?
Absolutely. We simply do not know what is about to happen to us in the future, and it is not just the elderly who might need one.
We recommend you seek legal advice to explore the advantages of having one in place and to ensure that the document is suitably prepared to meet your requirements.