Five common questions about powers of attorney

A power of attorney allows someone else to act on your behalf in the event you lose capacity and are unable to look after yourself and your own affairs. We consider some common questions about powers of attorney and how they operate.

1. Do you need a guardianship if you have a power of attorney?

A power of attorney will provide your chosen attorney with a number of different powers to act on your behalf, if they are required to do so. If a particular power is not included in the power of attorney document, the attorney will be restricted from certain actions (for example, having the ability to sell a house). If this is the case , a guardianship order (or an intervention order) will be required. We recommend including wide and flexible powers in a power of attorney to try and cover all situations that may arise to avoid the need for this.

2. Does a guardianship override a power of attorney?

If a guardianship order only provides additional powers alongside an existing power of attorney, a guardianship order will not override the power of attorney document and the two will work together. However, if the guardianship order replaces the power of attorney completely (for example, if an attorney has not been acting appropriately and the power of attorney is revoked) the power of attorney would no longer be effective and the guardianship order would be used instead.

3. Do you need a power of attorney after death?

Powers of attorney cease to have any effect upon the death of the granter. To ensure your wishes are followed after death, a will is required. 

4. What is the difference between a health care proxy and a power of attorney?

A power of attorney can include financial and welfare powers and allow the attorney to do everything that the individual could do themselves. A power of attorney must be granted whilst the individual has capacity. An 'advance directive' or living will can be prepared as part of your power of attorney. This provides an express wish that your life should not be sustained by artificial means and medical treatment should be limited to keeping you comfortable and free from pain where you are unable to communicate or make decisions about your medical treatment. In the United States, someone in this position is known as a health care proxy, but this term is not used in Scotland.

5. What is a lasting power of attorney?

A lasting power of attorney is an English version of a Scottish continuing and welfare power of attorney. We have colleagues who are dual qualified and we can offer advice on both Scottish and English powers of attorney.