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The 2019 Guide To Power of Attorney

Power-of-attorney

What is Power of Attorney?

The power to make basic life decisions, choices and judgements, is not something that everyone is able to manage. Many of us may take for granted our ability to decide where we live, what we eat or how we spend our money. When someone needs help to make such decisions for themselves they can appoint a power of attorney.

In Scotland today, everyone over the age of 16 is presumed to have ‘legal capacity’ to make all of their own personal and financial decisions. There are however, certain situations in which an individual may begin to lack this capacity, and in such instances, they will need someone to make these decisions on their behalf.  For this transition to happen a document known as a Power of Attorney is required. The person who is giving the powers is known as the Granter and the person who receives said powers and agrees to act on their behalf is referred to as the Attorney. It is imperative that the Granter chooses an Attorney before they fully lose capacity.

What is Capacity?

Governed by the Adults with Incapacity (Scotland) Act 2000 (The Act), the term legal capacity refers to an individual’s ability to make decisions for themselves. There are many situations in which an individual be lacking capacity. Some of which include; limited capacity due to a disability, or diminishing capacity caused by a progressive illness such as dementia. Others may lose capacity suddenly in the event of an accident or stroke.

The Act states that an individual may lack mental capacity if they are incapable of:

  • Acting (in relation to a decision); or
  • making decisions; or
  • communicating decisions; or
  • understanding decisions; or
  • retaining the memory of decisions.

Mental capacity can be fluid and change day by day and annually.

What are the Different Types of Power Of Attorney

There are 3 main types of Power of Attorney.

  1. Continuing Power of attorney

This allows the Granter to appoint an individual of choice to take care of their property interests and finances. The Granter can choose for this power of attorney to be granted immediately or to wait until such a time comes when they lose capacity. If this is to be granted immediately, the attorney’s role is not to make decisions for them but to support the Granter in making such decisions

  1. Welfare Power of Attorney

The Welfare Power of Attorney gives the chosen attorney the power to deal with matters relating to the granters welfare only and does not include any financial matters. Such matters may include health and medical treatment, home care and where the Granter may live.

  1. Combined Continuing and Welfare Power of Attorney

This allows for the chosen attorney to act on behalf of the granter in relation to both personal welfare and financial issues.

Any of these Power of Attorney documents must be registered with the Office of the Public Guardian. This office is responsible for registration and maintenance of all Power of Attorney documents in Scotland. They also provide an advice and information service, and they can investigate any complaints regarding the actions of appointed Attorneys.  Our solicitors at Jones Whyte Law are happy to provide you with any further information you may require in relation to the Office of the Public Guardian.

There is a fourth type of Power of attorney known as a Simple Power of Attorney. This is granted on a temporary basis or for a specific issue and cannot be used when a granter lacks capacity. Unlike the three main types of power of attorney, the Simple Power of Attorney does not have to be registered with the Office of the Public Guardian.

Granting a Power of Attorney

Setting up a power of attorney can be a stress-free experience with the help of our experienced solicitors at Jones Whyte Law. We can guide you through the process step by step and work with you to ensure you can confidently appoint someone you trust. There should not be any pressure to appoint a Power of Attorney, and while you still have capacity, you can change or cancel your Power of Attorney at any time for any reason.

You should be clear and honest with your attorney about what and how you want decisions to be made for you. You can be as specific as you like, and we recommend that you meet with and discuss all details of your needs and decisions with your attorney regularly to avoid decisions being made on your behalf that you may not have chosen for yourself. Details can all be laid out with both Continuing and Welfare Power of Attorneys and our solicitors at Jones Whyte Law have the required expertise and a very compassionate and understanding approach to supporting you throughout this process.

Additionally, you have the option of appointing joint attorneys. You can appoint more than one person to work together on the same type of decisions. It is important to consider if the people you choose can work well together.

You can also appoint different people to manage different types of decisions for you. Whatever you choose our solicitors are here to guide you through your options and help manage the process.

Being an Attorney

Deciding to take on the role of Attorney for someone is a great responsibility. It can be stressful and very time consuming. It is imperative that you take the time to consider whether or not this is the right decision for you. Our solicitors at Jones Whyte Law understand the responsibilities and pressures that may be involved, and we can provide the opportunity for you to discuss these in detail, as and when you need.

It is important to understand that the role of attorney is a responsibility and not a right, and that you will have a duty of care to carry out the Granters decision making instructions. The individual who lacks capacity is protected by The Act which states in s1 ss (5), that anyone chosen to act as an Attorney must “encourage the adult to exercise whatever skills he has concerning his property, financial affairs or personal welfare, and to develop new such skills”.

 

Guardianship Orders and Power of Attorney

Guardianship and Power of Attorney can often be confused and although they provide similar services and are both governed by the Adults with Incapacity (Scotland) Act 2000, they have significant differences. Both orders can be applied to financial and welfare matters, and they are both concerned with decision making on behalf of another individual. However, a Guardianship order can only be filed if the individual in question does not have capacity and is not able to appoint a Power of Attorney.

Furthermore, a Guardianship order requires an application being lodged with the Sheriff Court and is generally a much longer and more complicated process.

Our Solicitors at Jones Whyte Law have many years of experience with Power of Attorney documents and Guardianship orders. If you have any questions or concerns, or are considering becoming or appointing an Attorney, you can contact our friendly and compassionate team at This email address is being protected from spambots. You need JavaScript enabled to view it. or call us on 0141 375 1222.

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