As summer comes to an end, sporting media attention is shifting from Australia and New Zealand, the hosts of the Women's Football World Cup, to France, the hosts of the 2023 Rugby World Cup. In recent years, the headlines in both sports have been increasingly concerned with the impact of concussions, having forced early retirements and being regularly linked with the early onset dementia and other neurodegenerative diseases.

A study conducted by the University of Glasgow found that former professional footballers are approximately 3.5x more likely to die of dementia than members of the public of a similar age. This study was prompted by the death of the former England and West Bromwich Albion striker, Jeff Astle. He died from chronic traumatic encephalopathy (CTE), a brain condition traditionally associated with boxers who suffer repeated head trauma. The study found that the condition is prevalent among former footballers due to repeated heading of the ball. As a result, both the Football Association and the Scottish Football Association have introduced guidelines to ban or restrict heading at youth level and advising limits at professional level.

Similar trends have been identified in rugby with head injuries suffered during tackles accounting for 74% of all concussions. The game has become progressively more physical, with the number of tackles per match increasing threefold over the past 36 years, from 48 tackles per team per game during the inaugural 1987 World Cup to 128 in the 2019 World Cup. This further increased to 150 during this year's Six Nations tournament. As tackles are a necessary part of the game, concussions will inevitably occur, but piecemeal changes have been made to the laws of the game, including the introduction of the Head Injury Assessment. If a player is concussed or has suspected concussion, that player is removed from the game immediately. However, there are still concerns that the game is too dangerous, with the UK government announcing earlier this year that it will conduct a research programme to track concussion in the sport at a grassroots level.

While most sports carry the risk of injury, it is often perceived that the associated health benefits outweigh the risk. Increasing research into sporting performance has identified programmes and protections to manage the physical impact of exercise on the body, but the same level of thought is not often given to the legal safeguards that can be put in place to protect financial and welfare challenges resulting from a sporting injury.

So where do powers of attorney fit in?

If you suffer a loss of capacity or inability to manage your affairs caused by sport, or otherwise, you may need a legal representative to do so on your behalf. One way of achieving this is by granting a power of attorney, allowing your appointed attorney(s) to make use of certain financial and/ or welfare powers appointed in their favour.

Powers of attorney ("POA") are generally drafted to be wide ranging and flexible, and you can specify certain matters that you wish your attorney(s) to deal with. A well drafted POA will cover financial matters such as managing investments, insurance, pensions and tax returns, in addition to everyday matters such as paying bills and managing bank accounts. Whilst you retain capacity, these powers can only be used by your "financial attorney" with your permission.

A POA can also cover personal welfare matters, such as making decisions on medical treatment, personal care, and accommodation. "Welfare attorney(s)" are often, but do not need to be, the same person as the financial attorney. It is worth noting that an attorney can only make decisions on your personal welfare matters if you have lost capacity, not if you retain capacity to make them yourself, although of course you are always free to ask for advice.

If you do not have a POA and lose capacity, a guardianship order can be sought from the court to allow a guardian to make decisions on your behalf. A guardianship must be the least restrictive option available to safeguard your welfare and / or financial affairs and will only be granted as a last resort. As the application for a guardianship is a court-based process, it is more time consuming and expensive when compared to a POA and the person appointed may not necessarily be the person you would have chosen. In addition, a guardianship order is typically only granted by the court for a period of 3 years. This means that a guardian may have to make several renewal applications during your lifetime, incurring legal costs each time.

Whether you play a sport or not, it is never too soon to put in place a POA. Not only will this provide you with peace of mind for the future, it will also provide much needed clarity should you find yourself not able to make decisions for yourself.

The importance of seeking specialist legal advice about how best to plan for the unexpected cannot be overstated. If you have any questions about power of attorney, please contact a member of our personal team or your usual Brodies contact.


Gillian Grant


Scott Brooks