Personal Law

On the topic of Dementia Awareness Week, we look at another related and important campaign – ‘Start the Conversation’.

You may have seen references to Start the Conversation in TV adverts that have appeared over the last 18 months or so. The campaign has been driven by NHS Greater Glasgow and Clyde and Glasgow City Council to encourage individuals and families to plan ahead and put in place a power of attorney… and to do so irrespective of age or financial circumstances.

Why have adverts?

Without a power of attorney there can be serious difficulties making valid and legal decisions ‎for those who have no, limited or reduced capacity to make their own decisions. This can mean decisions about care, treatment and accommodation are not possible and are delayed until a court order (an intervention or guardianship order) is obtained.

This can cause local authorities and health boards significant problems in terms of managing and providing care. It will also cause similar issues for care providers in the private and third sectors. The risks for care providers can be very serious as there can be legal and regulatory issues associated with making decisions or determining places of residence for incapable adults.

To mitigate these problems, the adverts were designed to encourage the proactive granting of powers of attorney in order that there is someone with legal authority to make decisions without needing court approval. As well as giving formal legal authority, more importantly, it provides peace of mind for families and loved ones.

What is a power of attorney?

A power of attorney is a document which allows you to choose who can make decisions if you cannot. It can cover financial and welfare matters. You can have more than one attorney and appoint a substitute in case your primary choice of attorney is unable to act. You can also choose different attorneys for financial and welfare decisions. Someone making a power of attorney must have capacity at the time of granting the document.

Without a power of attorney there is no immediate and ready legal authority for decisions to be made – even by a spouse, civil partner or children. Where there is no power of attorney assets are essentially “frozen” and decision making ‎suspended.

How do you make a power of attorney?

It is a straightforward process.

  1. Choose your attorney or attorneys.
  2. Decide whether the attorney or attorneys will deal with financial and/or welfare matters.
  3. Decide if a substitute attorney is needed. If you cannot think of one, this should not delay you making a power of attorney.
  4. Get in touch. We can prepare a power of attorney to meet your needs. ‎A power of attorney must be signed in the presence of a Scottish solicitor or doctor.

For individuals and families, please do get in touch with team members based across the country for advice on incapacity planning.

Alan Eccles

Partner at Brodies LLP
Alan is a Partner specialising in private client (succession, incapacity and asset protection) matters as well as the charities, third and impact sectors.
Alan Eccles