Powers of Attorney are often associated with the elderly and younger adults may ask, why would I need a Power of Attorney? Powers of Attorney are important legal documents that everyone, regardless of age, should consider putting in place now, as a safety net for the future. Unfortunately accidents or illness can occur at any age - granting a Power of Attorney ensures that someone you trust is able to manage your affairs and make important decisions about your health and wellbeing if something was to happen to you in the future.
What is a Power of Attorney?
A Power of Attorney is a legal document giving someone else authority to act on your behalf, should you be unable to do so. You can grant your Attorney (or Attorneys – it is preferable to include more than one or, at least, include a substitute) financial powers only, welfare powers only or a combination of both.
Who can grant a Power of Attorney?
In Scotland, anyone over the age of 16 can grant a Power of Attorney as long as they are mentally capable of expressing their wishes and understanding the implications.
Who can be my Attorney?
You can appoint anyone over the age of 16 to be your Attorney. Your Attorney should be someone you trust completely and believe will act for your benefit. You can appoint more than one Attorney, as well as having different Attorney(s) for financial and welfare matters.
When are Attorneys able to act?
An Attorney only has legal authority to act on the person’s behalf once the Power of Attorney has been registered with The Office of the Public Guardian (OPG) and one of the circumstances noted in the Power of Attorney has triggered the use of the powers, e.g. the person has asked their Attorney to start acting or a doctor has confirmed they have lost capacity to make financial and/or welfare decisions on their own behalf. It is possible to have a Power of Attorney deed prepared, but not registered until it is required. The OPG keeps a record of all registered Power of Attorney deeds. In order to register the deed, the Attorney(s) have to sign a registration form confirming that they are willing to act. There is a registration fee payable (currently £85).
While you still have capacity to make decisions for yourself, your Attorney(s) can only exercise their financial powers if you authorise them to do so. Welfare powers cannot be exercised until you lose capacity to act for yourself.
What if I don’t have a Power of Attorney?
Should you lose capacity to make decisions on your own behalf and do not have a Power of Attorney in place, your family/ friends would need to apply to the Court for a Guardianship order to give them authority to make decisions about your care and to deal with your finances. Contrary to popular belief, should you lose capacity for any reason and are unable to attend to your own affairs, your family cannot simply step in and take control for you. Applying for guardianship is a lengthy process and can cause great distress to family members at what is already a difficult time.
What next?
Should you wish further advice on putting a Power of Attorney in place, please get in touch with our Power of Attorney team.
