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POWERS OF ATTORNEY: AN OVERVIEW

power-of-attorney

A Power of Attorney (“PoA”) is a document in which you give someone the power to make decisions regarding your life in the event that you can’t. Initially, you might jump to the conclusion that this means its only something you do when you’re older. However, having a PoA at any age is useful as you never really know when you’ll need to rely on it. 

The drafting of a good PoA is extremely complicated so using an experienced solicitor and getting advice is vital. It is a very powerful document as it gives legal authority to someone to act for you, without having to consult you at every turn.

I. WHAT EXACTLY IS A PoA?

People assume that family members will be able to deal with their affairs when they no longer can simply because they are family. That isn’t the case. They need explicit permission in the form of a PoA. PoAs are governed by the Adults with Incapacity (Scotland) Act 2000 (“The Act”). They set out the person/people you want to represent you (your attorney), the point you want them to ‘take over’, and their exact powers. It can relate to anything; from your finances and property, to your health and personal welfare.

The Act says that any PoA must create a benefit for the person concerned, take account of their wishes, and can’t be more restrictive than utterly necessary.

II. TWO DIFFERENT TYPES OF PoA

There are a two main types of PoA. A continuing PoA gives your attorney the ability to take care of your money and property. A Welfare PoA allows them to make decisions on matters relating to your future health and personal welfare. Different attorneys can be nominated for each type, or they can simply be the same person.

A continuing PoA can start straight away or can come into effect when the person who has granted it loses legal capacity. There is less flexibility with welfare powers which can only be exercised when the granter has reached incapacity.

What is incapacity? You always start by presuming that the person has capacity. This can then be reversed if medical evidence says so. For the purpose of PoAs, incapacity means being incapable of acting, making decisions, communicating decisions, understanding decisions and retaining memory of those decisions in relation to any matter due to mental disorder or inability to communicate because of a physical disability.

It isn’t an ‘all or nothing’ definition. You might have capacity to make some decisions but not others. Your capacity can also gradually deteriorate or be lost suddenly.

III. WHO CAN BE MY ATTORNEY?

Your attorney should be someone you can absolutely trust, as they are being given a lot of responsibility towards your life. Family members, friends and solicitors are commonly appointed. You can have more than one, or just appoint a single person to deal with everything. You can also nominate a substitute attorney to take over if your original attorney(s) are no longer able to continue.

If more than two attorneys are appointed, additional information should be given to state how they should act. Are they to make decisions together? Separately? Each have responsibility over different issues? An experienced solicitor will be able to help you decide.

IV. THE PROCESS: HOW DO I GET ONE?

To get a legally valid PoA three documents are required: a written document, certificate of capacity and registration form. You must go to a solicitor to draft one up. Some stationary shops sell PoA packs, but it’s always best to do things alongside an experienced legal adviser. The wording of the document will be open to interpretation, so it is important to get it right. It must then be signed either by a solicitor registered to practice law in Scotland, by a practicing member of the Faculty of Advocates, or by a registered UK medical doctor holding a licence to practice.

In terms of the actual content, a PoA typically contains:

  • A section on appointment stating who is to be appointed, how many attorneys are being appointed and information on the division of powers.
  • A section on general powers setting out any powers required to let the attorney act normally as you would act for yourself, and information of when they are to begin acting. It can be as simple as a ‘catch-all’ clause granting them power to do almost anything.
  • The attorney’s individual powers. It’s important to think about short and long term to ensure they have sufficient power to do everything you want them to. They may not need to exercise all of those powers, but it’s worth having them so that they can act to suit your needs and circumstances.
  • A validity statement confirming that the decisions and documents granted by your attorney are valid and binding.
  • A recalling statement stating that the PoA remains in place until you recall or withdraw it in writing, or until your death.
  • A testing clause containing technical legal requirements.
  • A certificate of capacity which can only be completed by a solicitor or doctor. They will interview you and your attorney must agree to their appointment.

Your PoA must then be registered at the Office of the Public Guardian.

V. COSTS AND TIMESCALES

Cost depends on the complexity of the document. Basic PoAs can be prepared for between £400-£500 plus VAT. The Public Guardian also has a registration fee of £79.

The Office of the Public Guardian aims to process PoAs within 30 working days. Electronic submissions can be done even faster. If your PoA needs to be registered urgently, you can apply to have it accelerated but good reason must be provided.

Weekly updates on timescales from the Public Guardian are available here: http://www.publicguardian-scotland.gov.uk/general/news.

VI. WHAT IF I DON’T HAVE ONE?

Without a PoA, no one has the right to act on your behalf. If you have already lost capacity, you can no longer put a PoA in place. Anyone who wants to make your decisions would have to apply to the Court for Guardianship. This can take up to 6 months to be granted; only lasts for a fixed period of time; is subject to strict ongoing compliance and is far more costly.

There is great benefit in looking ahead and appointing an attorney before it gets to this point. They offer great peace of mind by letting you plan for your future.  

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