November 12, 2019  Wills, Executry & Probate

A Power of Attorney (“PoA”) is a legal document in which you give someone the power to make decisions regarding your life in the event that you can no longer make your own decisions in relation to matters such as property and financial affairs and welfare decisions.

Initially, you might jump to the conclusion that this means its only something you should do when you’re at an older age. However, having a Power of Attorney at any age is useful as you never know when you’ll need to rely on it.

In essence, a power of attorney is a legal document that authorises a trusted individual to make decisions on your behalf concerning financial matters, property, and personal care if you become unable to make your own decisions.

Our power of attorney solicitors are here to help throughout the whole process, ensuring you completely understand the decisions being made and what that means for those involved should it be needed.

Do I need a Power of Attorney

A Power of attorney is a legally binding document that encompasses a certificate signed by an authorised professional, such as a solicitor registered to practice law in Scotland, a practising member of the Faculty of Advocates, or a licensed UK medical doctor.

This certification adds validity and authenticity to the document, ensuring that it meets the requisite legal standards. By obtaining the signature of a qualified professional, individuals can rest assured that their Power of Attorney is legally sound and capable of effectively delegating decision-making authority to the designated individual or entity.

People assume that family members will be able to deal with their affairs when they no longer can, simply because they are a family member. That is not the case and is something you should be aware of.

Lasting Power of Attorney

This legal authority is called “lasting power of attorney”. The person who is given power of attorney is known as the “attorney”.

They need explicit permission in the form of a legal Power of Attorney. Power of Attorneys are governed by the mental capacity act – Adults with Incapacity (Scotland) Act 2000 (“The Act”).

They set out the person/people you want to represent you (your attorney), at the point you want them to ‘take over’, and their exact powers.

It can relate to anything; from your financial matters and property, to your health and personal welfare.

The Act says that any Power of Attorney must create a benefit for the person concerned with their best interests at heat, take account of their wishes, and can’t be more restrictive than utterly necessary.

Types of Power of attorney

There are two primary categories of Power of Attorney, each serving distinct purposes and granting specific authority to designated individuals.

Firstly, the Continuing Power of Attorney empowers your chosen attorney to manage your financial affairs and oversee your property matters.

This entails handling transactions, managing investments, paying bills, and making other property and financial affairs decisions on your behalf.

On the other hand, the Welfare Power of Attorney pertains to decisions concerning your health and personal welfare.

This grants your appointed attorney the authority to make choices regarding medical treatment, living arrangements, and other welfare-related matters, should you become unable to do so yourself.

It’s essential to note that you have the flexibility to nominate different individuals as attorneys for each type of Power of Attorney, tailoring the selections based on their respective strengths and expertise.

Alternatively, you may opt to designate the same person for both roles, streamlining the decision-making process and ensuring consistency in handling your affairs.

Regarding the commencement of authority, a Continuing Power of Attorney can be structured to take effect immediately upon execution or to become active only upon the grantor’s loss of legal mental capacity.

This provides flexibility in planning for future circumstances and allows for seamless management of financial matters in the event of incapacity.

In contrast, Welfare Powers of Attorney typically only come into effect when the grantor reaches a state of mental incapacity, limiting their exercise to situations where the individual is no longer capable of making welfare-related decisions independently.

Understanding the nuances and distinctions between these types of Power of Attorney is crucial in establishing comprehensive plans for the management of your affairs.

By proactively outlining your preferences and selecting trusted individuals to act on your behalf, you can ensure that your best interests are protected and your wishes are honoured, even in challenging circumstances.

Incapacity

What exactly do we mean by incapacity? Initially, we operate under the presumption that an individual possesses capacity, meaning they have the cognitive abilities necessary to act, decide, communicate, understand, and retain memory regarding various matters and decisions they need to make.

However, this presumption can be challenged and overturned if medical evidence indicates otherwise.

In the context of Power of Attorneys, incapacity signifies an individual’s inability to effectively engage in these cognitive processes due to either a mental disorder or physical disability impeding communication.

This extends to the incapacity to act, make decisions, communicate decisions, comprehend decisions, and retain memory of decisions pertaining to any given matter.

It’s important to note that incapacity isn’t a binary concept; it’s not simply a matter of being entirely capable or entirely incapable.

Rather, it exists on a spectrum. An individual may possess capacity for certain decisions while lacking capacity for others.

Additionally, capacity may fluctuate over time, deteriorating gradually or suddenly depending on various factors.

This nuanced understanding of incapacity underscores the need for vigilance in assessing cognitive abilities and adapting decision-making processes accordingly, especially within the realm of Power of Attorneys where such assessments hold significant legal and practical implications.

Who should my attorney be?

Selecting an attorney is a crucial decision, as they will be entrusted with significant responsibilities concerning your life and affairs. It’s imperative to choose someone whom you have complete trust in, considering the weight of the role they will assume. Family members, close friends, or solicitors are often chosen for this role due to their familiarity, reliability, and expertise in legal matters. Moreover, there are specific eligibility criteria to fulfil when designating an attorney, including being at least 18 years old and possessing the requisite mental capacity to understand the implications of your decision.

Furthermore, the flexibility of the arrangement allows for various configurations. You have the liberty to designate multiple attorneys, distributing responsibilities among trusted individuals, or opt for a single individual to manage all aspects of your affairs comprehensively.

Additionally, it is prudent to consider nominating a substitute attorney, thereby establishing a contingency plan to ensure the continuity of decision-making should the original attorney(s) become unable to fulfil their obligations.

Given the profound impact of their decisions on your life, it’s imperative to approach the selection of your attorney(s) with careful consideration and foresight. By entrusting this role to individuals who not only inspire your trust but also possess the competence and dedication necessary for the task, you can rest assured that your interests will be safeguarded and your wishes faithfully executed.

Ordinary Power of Attorney

Conventional powers of attorney delegate business authority to another individual, granting them the ability to act on your behalf. However, the moment your mental faculties diminish, the conventional power of attorney becomes null and void.

Addressing the needs of an individual who is incapacitated, rendering them unable to independently manage their affairs, presents a myriad of significant challenges.

From navigating complex legal and financial matters to ensuring their daily care and well-being, the responsibility of supporting an incapacitated individual encompasses a wide range of considerations and demands careful attention to detail.

The challenges inherent in such situations underscore the importance of proactive planning and the establishment of appropriate legal arrangements, such as powers of attorney, to facilitate decision-making and provide necessary support when capacity is compromised.

Such powers of attorney typically serve temporary purposes, such as when a friend steps in to make decisions for an injured individual.

When contemplating setting up such an arrangement, you have the option to either establish a standard-issue power of attorney or limit it to specific activities.

It’s important to note that this document lacks the option for registration with any government entity.

If more than two attorneys are appointed, additional information should be given to state how they should act. Are they to act jointly ? Separately? Each have responsibility over different issues? An experienced solicitor will be able to help you decide on what will work in your best interests.

Legal document

A power of attorney is a legal document which allows you to plan for the future. To get a legally valid Power of Attorney three documents are required: a written document, certificate of capacity and registration form. You must go to a solicitor to draft one up.

Some stationary shops sell Power of Attorney packs, but it’s always best to do things alongside an experienced legal adviser.

The wording of the document will be open to interpretation, so it is important to get it right.

It must then be signed either by a solicitor registered to practice law in Scotland, by a practicing member of the Faculty of Advocates, or by a registered UK medical doctor holding a licence to practice.

Your Power of Attorney must then be registered at the Office of the Public Guardian.

Cost depends on the complexity of the document. Basic Power of attorneys can be prepared for between £400-£500 plus VAT. The Public Guardian also has a registration fee of £79.

The Office of the Public Guardian aims to process Power of Attorneys within 30 working days. Electronic submissions can be done in a much shorter time.

If your Power of Attorney needs to be registered urgently, you can apply to have it accelerated but good reason must be provided.

Without a Power of Attorney, no one has the right to act on your behalf. If you have already lost capacity, you can no longer put a Power of Attorney in place. It must be put in place prior to loosing capacity.

Anyone who wants to make your decisions would have to apply to the Court for Guardianship.

This can take up to 6 months to be granted; only lasts for a fixed period of time; is subject to strict ongoing compliance and is far more costly.

There is great benefit in looking ahead and appointing an attorney before you lose capacity it gets to this point. They offer great peace of mind by letting you plan for your future.

Establishing a power of attorney is a critical aspect of estate planning. It is essential to prepare for the possibility that, at some point, we may become incapable of managing our own affairs. By having a power of attorney in place, you can help your family avoid the potentially time-consuming and costly process of seeking court intervention to manage your affairs.

There are many reasons why a power of attorney is important. These include:

• 1 in 3 of us will suffer from dementia.

• A power of attorney will save time and money.

• It enables you to fund critical medical care.

• You decide who the attorney is. Without instructions in place, the court decides.

Contact us

A power of attorney is an indispensable element of estate planning. It not only allows you to designate a trusted individual to manage your affairs but also provides a range.

Don’t wait to secure your future – contact Jones Whyte today to set up your power of attorney. Our team can provide you with power of attorney legal advice.

To find out more, check out our blog which gives an overview about what exactly powers of attorney are and how they can help or impact you.

By choosing one of our power of attorney solicitors at Jones Whyte, you can enjoy cost-effective services that prioritise your wishes and intentions.