As we receive an increasing number of queries in relation to wills and powers of attorney, it has become clear that the Covid-19 pandemic is encouraging people to forward plan.
While many head to the internet to find out what they need to do, it is important that you get clear, accurate and professional advice. Here are some common misconceptions:
I have a will so I don't need a power of attorney.
A will is quite different from a power of attorney. Apower of attorneyis a legal document that allows someone to make decisions for you, or act on your behalf, if you're no longer able to or if you no longer want to make your own decisions. A will instructs how you would like your estate to be distributed and, if you are the parent or carer of a dependent, appoints a guardian to ensure for their care upon your passing. It is important that you have both documents in place.
If I lose capacity then my other half can act for me.
This is not the case. If you lose capacity and you do not have a power of attorney in place, it may well be necessary to apply to the Court for a guardianship order. This is often time consuming and costly.
If I did lose capacity, then it would be easy to get a power of attorney in place.
Unfortunately, this is incorrect. The guardianship procedure explained above would apply.
The process of getting a power of attorney is costly and time consuming.
With the right advice, the process for putting a power of attorney in place is relatively quick and straight forward. In the current circumstances our team are aware that clients will want their instructions to be dealt with as quickly as possible and we will ensure we do what we can to help achieve this. It is usually possible to provide a fixed cost for powers of attorney.
I can prepare the power of attorney myself and don't require to involve a solicitor.
We highly recommend that you get professional advice for something so important. In addition, the certificates attached to the powers of attorney need to be signed by either a solicitor or a doctor. We will discuss with you the best way of arranging this given the current situation and the recent Law Society of Scotland guidance on this issue.
It won't happen to me.
Unfortunately, none of us can predict what is around the corner. Planning for you and your family's future is the only way to ensure that your wishes are carried out.
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