Home How To Choose The Right Person For Your Power Of Attorney

How To Choose The Right Person For Your Power Of Attorney

September 23, 2024 Estate Planning

Appointing a Power of Attorney (PoA) is a crucial decision. It involves choosing someone you trust to manage your financial decisions and personal welfare affairs should you become unable to do so yourself. It’s a proactive step, ensuring your wishes are respected and your affairs are handled responsibly in the event you lose mental capacity.

Jones Whyte is a leading Scotland-based law firm with over 240 solicitors, legal executives, and professional business support staff. Our expert team is adept at handling all your Power of Attorney needs and is committed to providing you with the best legal advice to protect your interests.

Contents

How to choose the right Power of Attorney in Scotland
The different types of Power of Attorneys in Scotland
Why is having a Power of Attorney important?
How to appoint a Power of Attorney
How to find professional Power of Attorney solicitors in Scotland
Frequently asked questions

Key Takeaways

A Power of Attorney is a legal document that allows someone to manage your personal and financial decisions when you lose mental capacity or communication abilities.
You can appoint multiple attorneys to handle your affairs, whereby both parties act in your best interests.
A Power of Attorney must be over the age of 16.
There are three types of Power of Attorneys in Scotland: Continuing Power of Attorney, Welfare Power of Attorney, or Combined Continuing and Welfare Power of Attorney.
Once a Power of Attorney has been appointed, it must be registered with The Office of the Public Guardian Scotland.
Should you not have a Power of Attorney in place, a Guardian Order must be obtained through the courts, as per the Adults with Incapacity (Scotland) Act 2000.

How To Choose The Right Power Of Attorney In Scotland

Choosing the right person for your Power of Attorney ensures your personal and financial affairs are well-managed if you lose the mental capacity to make your own decisions or the ability to communicate them.

A Power of Attorney is a legal document that allows you to appoint someone you trust to make decisions pertaining to your property and financial affairs as well as your personal care.

Here are a few key qualities to look for in a Power of Attorney:

Trustworthiness: Choose someone you completely trust.
Capacity: Ensure this person’s has the mental capacity to handle your affairs.
Willingness: Ensure the person you wish to appoint is willing to take on the responsibilities of the role. The Office of the Public Guardian Scotland won’t register this chosen person unless they have agreed to be your Power of Attorney.
Understand your affairs: This person should have a good understanding of your financial affairs and personal situation.

Who can be your Power of Attorney?

You can appoint anyone you trust as your Power of Attorney, as long as they are 16+ years old. This could be:

Family members or a close friend
Partner or spouse
A professional advisor, such as a solicitor or accountant

Note: Persons who have declared bankruptcy cannot be made a Power of Attorney for financial affairs but can overview and manage Power of Attorney for personal welfare.

When should I choose a Power of Attorney?

You must appoint a Power of Attorney while fully capable – before you lose mental capacity or the ability to communicate. No one, not even your partner or family members, can do this on your behalf should you become incapacitated.

Typical scenarios include:

Prepare for the future: Creating a Power of Attorney while you’re in good health ensures your wishes are respected.
Medical concerns: If you have a chronic illness or a family history of conditions (e.g. dementia, Alzheimer’s) that could impact your mental capacity, you should definitely get a Power of Attorney.
Travel: A Power of Attorney guarantees asset management when travelling or living abroad, giving you peace of mind that your personal and financial affairs are taken care of.
Business ownership: If you own a business, a Power of Attorney can protect your interests and ensure continuity in unexpected circumstances.
Medical care: Should you need life-sustaining treatment or to be put in a nursing home, a Power of Attorney can protect your health and welfare as you age.

Note: Should you not have a Power of Attorney in place, someone will have to apply for a Guardian Order to act on your behalf. This process can be lengthy and stressful, often resulting in someone you wouldn’t have chosen as your Power of Attorney.

The Different Types Of Power Of Attorneys In Scotland

In Scotland, there are three types of Power of Attorney under the Adults with Incapacity (Scotland) Act 2000:

1. Continuing Power of Attorney (CPA)

Continuing Power of Attorneys manage your property and financial affairs. They do not have a say in any of your personal welfare affairs. A few responsibilities of this role include:

Paying bills
Collecting pensions or building society accounts
Access to important financial information (e.g. bank accounts)
Buying and selling investments, including properties
Signing documents and entering contracts
Making gifts of specified amounts to named persons (following your initial instructions)

You can activate your Continuing Power of Attorney immediately. However, you will have full control over your affairs until you can no longer manage them yourself.

Alternatively, you can include a ‘springing clause’ in your Continuing Power of Attorney. This means the Continuing Power of Attorney will only become active when a specific event (at a particular time) occurs, such as a doctor confirming your incapacity. Until this event occurs, the Continuing Power of Attorney cannot be officially registered with the Office of the Public Guardian Scotland.

Note: This is Scotland’s equivalent to England and Wales’ financial affairs Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (EPA).

2. Welfare Power of Attorney (WPA)

Welfare Power of Attorneys make decisions about your personal care. This role’s responsibilities include:

Deciding on your care arrangements
Managing your daily routine, including care funded through direct payments/public funds
Making decisions about your clothing, personal appearance, diet, recreational activities, and holidays
Deciding where you should live
Have access to your personal information such as medical records
Giving consent to medical care and treatment

A Welfare Power of Attorney only becomes active when you can no longer make decisions for yourself. You must include a statement detailing how your loss of mental capacity will be assessed, such as confirmation from a doctor or solicitor. This applies to all Welfare Power of Attorneys created on or after 5 October 2007.

Note: A Welfare Power of Attorney is Scotland’s equivalent to England and Wales’ health and welfare LPA.

3. Combined Continuing and Welfare Power of Attorney

This person is a combination of Continuing Power of Attorney and Welfare Power of Attorney and handles both financial and welfare decisions.

The Act allows you to appoint more than one attorney. You may want one person to handle your property and financial affairs, for example, and another for your personal care. If you choose to have joint attorneys, ensure they work together, as decisions about personal welfare can impact financial matters and vice versa.

Note: Whichever Power of Attorney option you choose, it must be signed before you lose mental capacity or the ability to communicate your decisions.

Why Is Having A Power Of Attorney Important?

Having a Power of Attorney offers several benefits:

Avoids legal disputes: Having a Power of Attorney prevents family conflicts over who should manage your affairs if you become incapacitated.
Financial management: A Power of Attorney manages all your financial decisions, from paying bills and mortgages to managing investments, paying taxes, and other monetary matters.
Asset protection: A Power of Attorney protects your property and financial interests. They prevent unauthorised access to your bank accounts and property-related fraud or abuse.
Streamlined decision-making: A Power of Attorney ensures important decisions are made promptly without the need for court involvement or social services (e.g. Guardianship Order).
Facilitates medical treatment: A Welfare Power of Attorney can make crucial medical decisions based on your condition, ensuring you receive the appropriate medical treatment.
Peace of mind: Knowing that your affairs are in capable hands provides peace of mind and a sense of security for everyone involved.

How To Appoint A Power Of Attorney

Appointing a Power of Attorney in Scotland involves several steps:

Choose your Power of Attorney: Select someone you trust to handle your financial and personal affairs. You can choose more than one attorney.
Prepare your Power of Attorney document: Jones Whyte can do this for you. The legal document must clearly outline the powers you’re granting to your attorney.
Obtain a certificate of capacity: A certificate provider – solicitor or medical practitioner – must interview you and sign a certificate confirming your mental capacity to understand the implications of granting a Power of Attorney.
Register the Power of Attorney: Once completed, register the document with The Office of the Public Guardian Scotland. Jones Whyte can do this for you. You must include a copy of your Power of Attorney document, a completed certificate of capacity and the completed registration form. This process costs £87.

Note: Power of Attorney will not take effect until they’ve been registered.

FAQs

What is Power of Attorney?

Power of Attorney is a legal document granting someone else the legal authority to act on your behalf when you lose the mental capacity to handle your own affairs. This person/s can make decisions and take actions related to your financial, legal, or personal affairs.

Is it a legal requirement to use a solicitor for Power of Attorney in Scotland?

No, you don’t legally have to use a solicitor to instruct a Power of Attorney in Scotland. However, the Power of Attorney document must be certified by a solicitor (regulated by the Law of Society Scotland) or a registered medical practitioner to confirm the granter understands the implications of Power of Attorney when they lose capacity.

Furthermore, opting to write a Power of Attorney yourself runs the risk of missing crucial information which can cause severe delays or complications further down the road.

Can you cancel a Power of Attorney?

Yes, you can revoke or cancel a Power of Attorney should the granter be of sound mind.

How much do solicitors charge for Power of Attorney in Scotland?

Solicitor fees for Power of Attorney in Scotland vary, depending on the intricacies of your affairs. Contact our team to find out more.

Can a Scottish Power of Attorney be used outside the UK?

The short answer is: it depends. Each country has their own Power of Attorney laws and you may have to require ‘legalisation’ or ‘Apostillation’ of your Power of Attorney for it to remain valid. You can check the UK Foreign, Commonwealth and Development Office website for more details.

Jones Whyte Is Here To Help

Choosing the right Power of Attorney is a significant decision that requires careful consideration. You can make a more informed decision when understanding the different types of Scottish Power of Attorney, the qualities to look for in a Power of Attorney and the process involved.

Jones Whyte offers expert legal advice and guidance on all aspects of appointing Power of Attorney. Our experienced solicitors will assist you in creating this legal document outlining your specific needs and circumstances. Contact us today for a consultation.

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