There are three questions we are asked most often by clients or potential clients regarding Wills and Power of Attorney deeds:
1. What is the difference between them/do I really need both?
Power of Attorney
A Power of Attorney deed is a document which allows person(s) nominated by you to be your Attorney(s) to assist you with or take care of your financial and/or welfare matters, during your lifetime. Perhaps you struggle with mobility or illness or have reached a point where you no longer wish to deal with your finances yourself.
A Power of Attorney deed is only able to be used by your Attorney(s) once it has been registered with the office of the Public Guardian (Scotland). However, it is possible to have a Power of Attorney deed prepared, but not registered until it is required.
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.
The legal process for assisting families where a person does not have a Power of Attorney deed and that person has lost capacity, is called Guardianship. Guardianship is a lengthy Court process, which can cost a considerable amount to put in place.
A Power of Attorney document will cease upon your death i.e. your Attorneys no longer have authority to deal with your affairs once you have died.
Will
A Will is a document which allows person(s) nominated by you to be your Executor(s) to deal with the administration of your estate, once you have died. It is their duty to ensure the terms of your Will are followed and executed.
Your estate is all assets in your sole or joint name (with other person(s)) at the date of your death.
Administering an estate where there is no Will requires extra Court process, can be lengthy and cost more than if there is a Will.
2. I am relatively young, why should I make a Power of Attorney deed or Will?
No one likes to think about bad things happening to themselves or their family members. However, they can, and do…and age does not always factor into unwelcome and unexpected illnesses, or tragedies.
Power of Attorney deeds and Wills can be there as a safeguard for you, but also your family (particularly if you have underage children), should something unexpected happen. They are documents which can be considered as a positive “future proofing” rather than a negative belief or expectation that people are “trying to get rid of you or take control”.
Children age 12 and above can make a Will in Scotland.
3. Can I prepare the documents myself rather than incur professional costs?
Everyone can prepare such documents themselves. However, it is recommended that they are prepared professionally. There are a few reasons for this recommendation:
1. Solicitors have a duty when preparing Power of Attorney deeds and Wills for clients, to be satisfied the person has capacity and is not being forced into this by anyone else. This is advantageous in situations where family relationships are acrimonious and documents are challenged by a third party or beneficiary;
2. One of the most common mistakes are when people use English styles printed from the internet. The law in Scotland and England regarding Power of Attorney deeds and Wills is different. If you prepare the documents incorrectly it may be too late by the time you realise and your Power of Attorney deed and Will may be treated as invalid i.e. as though they do not exist and this will mean family members will need to use the longer and more costly Court processes; and
3. Cost – the cost of preparing Power of Attorney deeds and Wills is often mentioned as an issue as to why people are put off or do it themselves. Naturally, people think of the cost in the here and now and not the cost in the future, should they get it wrong. The preparation cost be a few hundred pounds per document, whereas the cost in the future can run into thousands (if the documents are deemed invalid).
It is vitally important that Power of Attorney deeds and Wills are prepared correctly and we can provide that peace of mind.
