Do you need a Power of Attorney?

Posted by ELP Arbuthnott McClanachan on October 1st, 2019

What is a Power of Attorney?

A Power of Attorney which is drawn up under the Adults with Incapacity Act (Scotland) Act 2000 is a document which authorises someone you trust to act on your behalf in relation to financial matters and/or issues affecting your welfare. The Power of Attorney will remain valid until you die (unless you revoke it, which you can do at any time), and importantly it can still be used even if you are unable to understand what is going on – if you lose “mental capacity”.

Why would I need it?

None of us knows what the future holds. Accidents or serious illnesses can strike at any time leaving us incapacitated. Also, as we get older it is important to recognise that there might come a time when it is difficult to manage our own affairs without assistance. Most banks, insurance companies, pension providers and other agencies will not deal with family members unless they have a Power of Attorney.

Why is a Power of Attorney important?

A Power of Attorney is straightforward, easy to use and relatively cheap to put in place. It provides a simple way to ensure that what needs to be done can be done – without costly applications to Court. If you are unfortunate enough to lose capacity without having a Power of Attorney in place then your family may have to apply to the court for a Guardian to be appointed, which is very costly, time-consuming and can be stressful for all concerned.

What sort of things can my Attorney do?

Normally we would recommend that a combined Continuing Power of Attorney (sometimes known as a “Financial Power of Attorney”) and Welfare Power of Attorney is granted. A Financial Power of Attorney allows your Attorney to deal with your financial affairs – to operate bank accounts, buy and sell property, deal with tax affairs, insurance companies, investments, pensions and really anything of a financial nature. It can be used as soon as it is registered if help is desired or needed.

In contrast, a Welfare Power of Attorney can only be used if you are no longer able to manage your own affairs and so cannot make decisions for yourself. A Welfare Power of Attorney will allow your Attorney to be consulted by the medical and social work professionals on matters affecting your care and medical treatment – if you are unable to have a say in what is happening to you, you would probably wish those who know and love you best to be involved.

What if my Attorney steals from me or does things I am not happy about?

Whilst an Attorney has wide-ranging powers under a Power of Attorney, there is a code of practice for Attorneys which can be found in full in the Public Guardian’s website. There are essentially 4 guiding principles in the Adults with Incapacity (Scotland) Act which the Attorney must take into account. These are:

• that anything done must be for the benefit of the adult and cannot be achieved any other way;
• there must be minimum intervention so that whatever is done shall be the least restrictive option in relation to the freedom of the adult;
• they must take account of the wishes of the adult (past and present) in deciding what to do; and
• they must also consult with relevant others such as close relatives and primary carers.

It is true however that no-one supervises an Attorney (although the Public Guardian does have powers to investigate if anything untoward is reported to her and she can apply to the Court to rectify the situation). For this reason, it is essential that you do have complete confidence and trust in your chosen Attorneys.

When should I grant a Power of Attorney?

The simple answer is “now” – the sooner the better. As you can only grant a Power of Attorney if you understand what it is all about, it is best to get it in place at the earliest opportunity, because who knows when or why you might need it. If you delay, circumstances might overtake you and you might miss the boat leaving your loved ones with the prospect of having to apply to Court for a Guardianship Order – described by the Public Guardian herself as “not for the faint-hearted”! A Power of Attorney is an enormously valuable protection for the future – one that we all hope we will never need but none the less would be wise to have in place.