Power of Attorney in Scotland, & Why it Matters – You may have heard the term Power of Attorney bandied around, but not fully understood what it means and why it matters.
What Is It?
According to mygovt.scot “A power of attorney is a legal document that allows you to plan for the future. It’s drawn up when you have the capacity to do so. It gives another person, known as the attorney, the authority to deal with aspects of your affairs. This could relate to financial/property matters and/or personal welfare.’’
Power of Attorney allows somebody you trust to deal with your affairs, when you’re no longer fully capable of dealing with them yourself. One of the key lines is the passage above is ‘when you have the capacity to do so’. Power of Attorney needs to be established when you are mentally capable, so don’t wait till it’s too late.
When to Do It
Some people, experiencing the early onset of Alzheimer’s or Dementia, can see the future ahead of them, and have the time to react and set up Power of Attorney. Other retirees, in rude health, may not see the requirement whatsoever. They may actually balk at the idea, as they’re enjoying their golden years and dismiss the idea as ‘not for them’. But as we age things are more likely to strike us out of the blue – a stroke, a heart attack. If you trust someone dearly, then you can set up Power of Attorney and their ‘power’ can remain inactive, dormant, until it’s required. On that day it will be very useful to have it in place.
Are there Different Types of Power of Attorney?
Mygov.scot outlines two types of power of attorney: “Power of attorney relating to your financial/property affairs is known as a ‘continuing power of attorney’ and may be given with the intention of taking effect immediately and continuing on you becoming incapable. Or you can decide you only want it to begin if you become incapable.’
‘Welfare power of attorney allows someone you have appointed to make welfare decisions for you, and these powers can’t be exercised until such time as you have lost the capacity to make these decisions.”
Do I Have to Choose One Attorney?
No, if you have two children, for example, they can both be attorneys. You don’t have to pick a favourite!!
How Do I Set it Up?
These are official and significant documents. As such, a PoA must be certified by a solicitor or a medical practitioner who conducts an interview to check that you know what you’re signing off for, and that you’re not being influenced or pressurised in any way.
The finished document will be registered with the Office of the Public Guardian, accompanied with a registration form from the attorney.
Naturally solicitors fees are involved, and there’s a fee to register a power of attorney with the Office of Public Guardian. If legal fees are a sticking point, check if you’re eligible for assistance at the Scottish Legal Aid Board. To save money, you could potentially write up your own Power of Attorney document, but this is a legal document so take time and care to ensure you’ve dotted the i’s and crossed the t’s.
What Does this Role Mean for your Attorney?
Usually an attorney is a close relative (spouse, sibling or child). They have be able to face deal with your business (from bank statements to tax returns), organise your life and make big decisions when the time comes. Most people step up to the job through love, but be clear to your attorney what you are asking of them. An attorney can resign from the post if they wish.
What if you don’t set up PoA?
If you suddenly can’t make decisions for yourself it may be diffcult for anyone else to access the funds you need and makes decisions on your behalf. You may be subject to strangers/professionals making decisions for you. Professional bodies may opt for the best care for you, or they might opt for the cheapest. Having your family involved via PoA should add a level of protection.
The absence of a PoA can cause your loved ones SO much additional work, as they find themselves going to court for a guardianship or intervention order before they can act on your behalf. You are not just doing it for yourself, you’re doing it for those around you.
What if I Change my Mind? Can it be revoked?
Yes, power of attorney can be revoked. Read more at the Office of Public Guardianship here – but situations when Power of Attorney can, or will, cease include divorce, regaining mental capacity, death, or if the granter wishes to cancel/revoke the PoA (if they are of sound mind to do so).
Power of Attorney is a big decision, and involves a great deal of trust, but in times of need would you rather have your family acting on your behalf or professional strangers? Start the conversation now and plan for a future that works for you.
Read more at mygov.scot/power-of-attorney.
At Inchmarlo Retirement Village we encourage planning for the future so you can enjoy every day. We offer independent living and continuing care. Currently, Inchmarlo consists of over 190 houses and apartments and a 52 bed care home designated Grade 4 by the Care Inspectorate. We consider ourselves experts in helping you or your family to age graciously. If you or your relatives have any questions about Inchmarlo please contact Dawn Ronaldson on 01330 824981. We’d happily give you a guided tour, send a brochure or answer any queries.”