If you're living in Scotland and you don't currently have a power of attorney, are you sure that's for the best?

In the absence of a Continuing and Welfare Power of Attorney there is a risk that decisions about your well being and your assets could be taken by people who believe they know what is best for you, but in reality don't!

The Adults With Incapacity (Scotland) Act 2000 requires any named Attorney to act in accordance with the 5 principles of the Act:

• to act for your benefit i.e. in your best interests
• to act in the way which is least restrictive
• to take into account your present (and past) wishes
• to act in consultation with 'relevant others' involved in your care - your primary carer/spouse/nearest relatives, GP and others
• to encourage you to use your existing skills and develop new ones

Think of these 5 principles as spokes in a wheel with you, the granter, at the centre making that wheel turn.

• What makes you tick?
• What matters?
• How do you want to be cared for in the future?
• What kind of social interaction do you prefer?

In a recent Welsh case, an elderly unmarried couple took social services to court to have the right to go on holiday together. Days before going on a cruise, social services asked the Court of Protection to agree it was not in the lady's "best interests" to go. Although she had dementia the court ruled she was capable of making the decision to go and that on balance the benefit of going, on what was likely to be her last holiday, outweighed the council's overly risk averse concerns for her safety - a cautionary tale highlighting the benefit of having a Power of Attorney in place.

Where you have a spouse, children or close relatives, decisions about your welfare and finances may be relatively easy but there can be differences of opinion. At TC Young we address this by encouraging clients to complete a questionnaire to cover pertinent questions about a range of issues including personal likes/dislikes, recreational interests and medical history. This is provides compelling evidence of your wishes if you are no longer able to communicate these at the time decisions are being made on your behalf.

If you're living in Scotland and would like to discuss a power of attorney in more detail, please contact us.