Personal Law

Powers of attorney are rightfully becoming more common in Scotland and it is hoped that this will continue as we mark Scotland’s first ever National Power of Attorney Day on 20 November 2019.

A power of attorney places substantial power in the hands of your attorney to look after your affairs in the event of incapacity.

As such, when granting and operating a power of attorney, there are various matters that require consideration.

Who should be my attorney?

The importance of choosing the right person or persons to appoint as your attorney cannot be understated. As commented on in one of our recent blogs, with great power comes great responsibility. Your attorney should be someone that you can trust and rely on to look after your affairs in the event that you become incapable in the future.

It is often worthwhile appointing more than one attorney or to appoint a substitute attorney who will act in the event that the principal attorney is unable to act for you. You may prefer to appoint a team of attorneys. It is important to get your team selection right to ensure that your team will work well together.

Separately, it is sensible to think practically when appointing an attorney. A good attorney will be able to make quick decisions when required and this is not likely to be possible if your attorney lives abroad.

What powers should my attorney have?

Powers are interpreted restrictively. As a result, it is worthwhile granting your attorney a wide selection of powers to allow them to fully manage your affairs. The powers can cover your financial affairs and/or your personal welfare.

It is also prudent to think about when the powers will come into force. Financial powers can either be operated once the power of attorney has been registered with the Office of the Public Guardian or, alternatively, they can spring into operation upon incapacity. Welfare powers will only come into force on incapacity.

When should I put a power of attorney in place?

We recommend to clients of all ages that they should put powers of attorney in place.

There is a common misconception that powers of attorney are only for the elderly; however, this is not the case.

It is essential that you have capacity when you sign your power of attorney. Therefore, it is sensible to put a power of attorney in place at an early stage when there are no difficulties concerning capacity.

Powers of attorney can provide vital assistance with any form of unexpected incapacity. For example this might include incapacity arising from a road traffic accident or being temporarily stuck abroad.

What if I own assets abroad?

It is also important to consider whether or not you require more than one power of attorney. If you own properties or have connections in different jurisdictions, it may be worthwhile to have a power of attorney in more than one jurisdiction.

Plan ahead

National Power of Attorney Day raises awareness and highlights the importance of powers of attorney. Powers of attorney provide flexible and cost-effective solutions to the difficulties associated with incapacity. It is hoped that with increased awareness of the benefits of powers of attorney, more people will plan ahead and put powers of attorney in place.

For advice on powers of attorney, please do not hesitate to contact any of the members of our Personal team.

Fraser Mackay

Senior Solicitor at Brodies LLP
Fraser is a senior solicitor in our Personal & Family team based in Aberdeen. Fraser advises clients on wills, succession and tax planning, powers of attorney, guardianship orders, trusts and charity law.
Fraser Mackay

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