A power of attorney is a legal document appointing trusted persons (attorneys) to make decisions on your behalf. Provisions for powers of attorney vary across the UK. This article considers the options available in Scotland.
Why have a power of attorney?
While it is difficult to contemplate becoming unable to make your own make decisions, an estimated 100,000 Scottish adults have significantly impaired legal capacity. A power of attorney allows you to choose trusted family, friends or professional advisors to take care of your business and personal finances and your personal welfare should you become unable to do so yourself.
Types of powers of attorney
Continuing powers of attorney deal with your financial affairs, eg your bank accounts, investments and business interests. These documents ‘continue’ in force in the event that you become incapable and come into force once registered (see below).
Welfare powers of attorney only take effect if you become incapable as a result of mental incapacity. They empower your attorneys to make decisions regarding your personal welfare, for example where you will live, arrangements regarding your personal care and deciding which activities you should engage in.
Welfare attorneys can also be given the power to make decisions about medical treatment.
Most Scottish powers of attorney contain both types of powers and are referred to as ‘continuing and welfare powers of attorney’.
How to grant a continuing and welfare power of attorney
A solicitor can assist you to put in place a power of attorney. After reviewing a draft, you will need to meet with your solicitor or doctor to have the document signed. A certificate requires to be signed by the solicitor or doctor to confirm that you understand the terms of the document and are not being put under any pressure to sign it.
As your attorneys will be under various duties, your solicitor will contact your attorneys to confirm they are happy to act in this role. These duties are set out in the Office of the Public Guardian’s (OPG) Code of Conduct. The Public Guardian is an officer of the court who has certain supervisory functions.
Your power of attorney will then be sent to the OPG for registration. The registration process takes a number of weeks but can be fast tracked if necessary.
Choosing your attorneys
Your attorneys will have wide-ranging powers so it is important that you choose people you trust, who understand your needs. You may wish to consider appointing a professional attorney.
It is also possible to appoint substitute attorneys, who will act only if your principal attorney is unable to do so.
What happens if there is no power of attorney?
If a person loses capacity before granting a power of attorney, there are other legal mechanisms available to deal with decision making, eg applying to the court for a guardianship or intervention order. However, these procedures can be expensive, slow and cumbersome. Above all, they do not allow you to choose who will act on your behalf.
A power of attorney is therefore the simplest, cheapest and most flexible option.