As World Alzheimer’s Day approaches, it is an opportunity to raise awareness of the illness and support those living with dementia, as well as their carers and families. It’s also a good time to look at your own circumstances and whether you and your loved ones have your affairs in order, including ensuring you have a power of attorney.
What is a power of attorney?
A power of attorney is a document which allows you to choose who can make decisions for you if you are unable to make decisions for yourself. There are two types of power of attorney: continuing and welfare. A continuing power of attorney appoints a person who can manage your property and financial affairs (such as accessing your bank account and paying your bills). A welfare power of attorney appoints a person who can make decisions about your health and personal care (such as deciding what kind of medical treatment you receive).
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. It is, of course, important to appoint people that you trust as your attorneys.
It should be noted that someone making a power of attorney must have capacity at the time of granting the document.
What happens if I don’t have a power of attorney but I need one?
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. The most common solution is a guardianship order. A guardianship is when an application is made by an individual or local authority to the local Sheriff Court to be appointed as a financial and/or welfare guardian. The differences between a power of attorney and a guardianship order were considered in our recent blog, as well as the proposed changes to the guardianship procedure in Scotland.
How do I make a power of attorney?
• Consider who you would like to appoint as your attorney or attorneys.
• Decide whether the attorney or attorneys will deal with financial and/or welfare matters.
• Decide if a substitute attorney is needed. If you cannot think of one, this should not delay you making a power of attorney.
• Get in touch. We can prepare a power of attorney to meet your requirements. A power of attorney must be signed in the presence of a Scottish solicitor or doctor.
It may be that you never need to use your power of attorney. However, it is still important to make sure you have one in place. This process is not only straightforward for you, but it makes a difficult and stressful time for your loved ones a little easier to cope with. You will have peace of mind knowing that your affairs are in the safe hands of those you have entrusted.
For individuals and families, please do get in touch with team members based across the country for advice on incapacity planning.
On September 20, 2018