Personal Law

Today, 20 November 2019, is National Power Attorney Awareness Day in Scotland.

The aim of the campaign, driven by My Power of Attorney, is that “by ‘Starting the Conversation’, people are encouraged to think seriously about whether they need, or need to give someone, the legal powers that power of attorney provides.”

In support of the campaign, and for the purposes of helping you with ‘Starting the Conversation’ with your loved ones, we answer some of our most commonly-asked questions about powers of attorney.

Powers of attorney are often associated with old age, and losing capacity due to illness, but we recommend that EVERYONE put a power of attorney in place, regardless of age or circumstances. We don’t have a crystal ball to predict the future, so no one knows for sure what is around the corner and when we might need someone to act on our behalf.

What is a power of attorney?

A power of attorney is a document that allows you to choose who you would like to make decisions for you, should you become incapable of making them for yourself.

There are two types of power of attorney: continuing and welfare.

A continuing power of attorney allows you to appoint an individual, or individuals, to make decisions about your financial, legal and property matters (e.g. accessing your bank account, or paying your bills).

A welfare power of attorney allows you to appoint an individual, or individuals, to make decisions about your health and personal care needs (e.g. what kind of medical treatment you should receive).

It is also possible to have a combined power of attorney – which covers both continuing (i.e. financial and legal) and welfare powers.

Why do I need one?

It a common misconception that your loved ones would automatically have the authority to make decisions on your behalf, should you be unable to. However, without a power of attorney, there is no immediate and ready legal authority for decisions (either financial or welfare) to be made – even by a spouse, civil partner or children.

Where an individual becomes incapable of making decisions for themselves, but no power of attorney is in place, a guardianship order may have to be made. While a guardianship order is a solution, it is one that can be timely and expensive (far outweighing the cost of having a power of attorney prepared), and (unlike with a power of attorney) the appointment of an appropriate person to make the decisions on behalf of an incapable adult is outwith the control of the adult concerned.

It is only possible to exercise the powers granted under a power of attorney once the document has been registered with the Office of the Public Guardian (OPG). We recommend having the document registered with the OPG as soon as it is signed, meaning the powers therein can be acted upon immediately, should that need arise.

What do I need to consider before putting a power of attorney in place?

  • Continuing and/or welfare

As explained, there are two different types of power of attorney: continuing and welfare. You may want to consider what your needs are likely to be. We recommend preparing a single power of attorney document that combines both continuing and welfare powers.

  • Attorneys

You should also consider who you would like your attorneys to be.

Different attorneys can be appointed for continuing and welfare powers. We recommend appointing more than one attorney, or alternatively, appointing a substitute, should your primary attorney be unable to act. Where more than one attorney is appointed, any decision making can be taken together or individually (whichever is administratively easier).

When considering who you would like to act as your attorneys, it is important to appoint individuals that you trust to look after your affairs. This could be a family member, friend or professional.

  • Powers

Your attorney will only have the powers which you grant them, and no powers are implied.  As such, you should consider whether any particular or bespoke powers are required in your specific circumstances. We recommend granting wide powers for attorneys to exercise their good sense when acting on the granter’s behalf, to cover all eventualities and changes in circumstances.

  • Living will

It is also possible to include a living will, or advance directive, in the power of attorney. A living will is an indication to the medical profession, and your loved ones, as to what treatment you should or should not receive in certain circumstances.

A living will can be prepared as a separate document and placed with your medical records, or it can be included in the body of the power of attorney. It serves as a helpful record of your wishes and arguably removes the burden from your family in trying to decide what treatment you would (or would not) have wanted, at a likely already difficult and stressful time.

  • Certification

In order for a power of attorney to be put in place, it must be certified by a medical professional or practising solicitor to certify that you understand the document, and that no undue pressure has been put on you to prepare it. This requires a meeting with, usually, a GP or solicitor.  This is a safeguard to ensure that you understand the nature and effect of the document, and are making an informed and free decision to put these powers in place.

How can I put one in place?

Putting a power of attorney in place is a quick and straightforward process which we can help you with.

If you are interested in putting a power of attorney in place, or discussing any issues raised above further, get in touch with the Personal and Family department, or telephone 0131 228 3777 to speak to a member of our team.

By Stacey Gourley, Senior Solicitor, and Jemma Deeney, Trainee Solicitor

Stacey Gourley

Stacey is a solicitor in the Personal & Family team in Edinburgh.

Stacey assists with a broad range of work including will and power of attorney preparation, executries, tax and estate planning, trusts, and incapacity related issues.

Clients appreciate Stacey’s pragmatic, friendly and approachable manner. Stacey enjoys building strong working relationships with clients and is committed to delivering excellent client service which is tailored to each individual client’s needs and circumstances.

Stacey is also an Associate Member of Solicitors for the Elderly – a national association of independent lawyers who specialise in older client law. Having experience of working with older clients, Stacey understands the importance of taking into account any difficulties, both mental and physical, which can affect older and vulnerable clients, and is sensitive to the health and social problems that people may face. Stacey adopts a holistic approach to problem solving and endeavours to put older and vulnerable clients at ease when advising on their personal affairs and dealing with sometimes complex, life changing issues.
Stacey Gourley