During our Dementia Awareness Week, we blogged about the importance of wills. We also want to stress the importance of powers of attorney, which allow someone else to act on your behalf in the event you become incapacitated and unable to look after yourself and your affairs. While powers of attorney are often associated with old age, and illnesses such as dementia, incapacity can also occur from other illnesses or from an accident. We recommend that everyone have a power of attorney. But why do you need this document? What are the benefits of having it?
(1) Protect your finances and your well being
If you lose capacity, a power of attorney allows your chosen attorneys to look after your finances (such as looking after your house, accessing your bank accounts and making decisions about your investments) and also make decisions about your care and welfare (such as what treatment you receive in hospital and which care home you move into, if required). By having a power of attorney, you are ensuring that someone you have appointed can look after your affairs for you for as long as is necessary. A power of attorney provides that individual with the authority to protect your finances and make the right decisions in your best interests.
(2) Control who your attorneys are and what they can do
Having a power of attorney allows you to decide who will be your attorneys and who will look after your affairs and make decisions about your care in the event you become incapacitated. We recommend appointing people you trust to make these decisions for you. You can choose different attorneys to look after your finances and make decisions about your welfare.
A power of attorney also allows you to decide what powers your attorney will have (making it as wide or restrictive as you want it to be) which reinforces that control.
(3) It is cost effective and quick to put in place
If you lose capacity and do not have a power of attorney in place, someone must apply to the Sheriff Court for a guardianship to be put in place. While a power of attorney can be put in place quickly, a guardianship application can take around 6-9 months before a guardian is appointed. Additionally, the costs for a guardianship are significantly more than the one off cost of putting a power of attorney in place. The alternative can therefore be a laborious and expensive process and can cause considerable delays.
(4) It comes into effect as soon as it is required
As soon as a power of attorney has been signed and registered with the Office of the Public Guardian, it can be operated by your attorneys. Once the document is registered, your attorneys can act on your behalf in respect of your finances while you retain capacity (which can be helpful if for any reason you are struggling with looking after your affairs). However, they can only make decisions about your welfare if and when you lose capacity.
The attorneys must act in your best interests, as they are effectively ‘stepping into your shoes’. The Office of the Public Guardian have a Code of Practice that all attorneys must adhere to.
(5) It gives you, and your family, peace of mind
While death is a certainty, incapacity is not. You may never lose the ability to look after yourself and your affairs and therefore you may never need a power of attorney. However, if you do not have one and lose capacity, this can lead to delays, costs and frustrations for you and your loved ones. Having a power of attorney offers peace of mind that if something did happen to you, you have the right legal document in place to make that process much easier to deal with.
There are a number of common misconceptions surrounding powers of attorney and we strongly recommend that (like wills) everyone has a power of attorney, regardless of age, wealth or circumstances.
So, what can you do?
While we are all adjusting our lives as a result of the Covid-19 pandemic, our personal team at Brodies across our offices are all working remotely. We can assist you with putting a power of attorney in place as well as discussing any questions or concerns you might have. Please do not hesitate to contact us and we would be happy to help.
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