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Powers of Attorney
A small price to pay for peace of mind.
Think about it. Who would you most want to take care of your personal, financial or business affairs if you were no longer in a position to do so yourself – if you take a job abroad, for example, decide to go travelling or were hospitalised for a lengthy period of time?
Ideally, you might want this responsibility to be taken over by your spouse or partner, a friend or relative, a business partner or perhaps a trusted professional advisor such as an accountant or a lawyer. However, none of these would be legally entitled to act on your behalf under Scottish Law without being officially named as your representative through a Power of Attorney agreement.
Just like making a Will, establishing Power of Attorney is an investment in reassurance. Powers of Attorney are simple and inexpensive to set up and, like Wills, can be changed at any time if you later decide to appoint someone else instead.
It’s also worth bearing in mind that Powers of Attorney cannot be awarded retrospectively. Depending on the circumstances, not having a Power of Attorney agreement in place could involve your family in costly court proceedings to gain the right to manage your affairs including access to your bank accounts to pay essential bills.
Our solicitors in Edinburgh and Fife can also offer advice on how best to fulfil your responsibilities if you’ve been given Power of Attorney to act for someone else.
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- Q1 What happens if an adult loses capacity and hasn't appointed an Attorney?
Capacity can sometimes be a difficult thing to judge and just because someone has been diagnosed with an illness like dementia does not mean that they cannot grant a Power or Attorney.
An informal assessment would have to be done to find out if a Power of Attorney is possible. If the adult would not understand the deed then unfortunately a Power of Attorney is not appropriate. If this is the case a Guardian would have to be appointed by the court. Anyone with an interest in the Adults affairs can be appointed as a Guardian (both for financial and welfare matters).
We have a wealth of experience dealing with guardianship applications and their ongoing administration so please do contact us if you would like more information on Guardianships.
- Q2 Is a Power of Attorney the same as an Executor?
No. An Executor is appointed under your Will and only takes the position on death. If you were unable to deal with matters but still living (e.g. had dementia) an Executor would NOT be able to act on your behalf. This is where an Attorney comes in, they can act during your lifetime but their power ceases on death.
- Q3 Who can I appoint as my Attorney?
There are lots of options here. You can appoint a family member, friend, professional, or any mixture of them to act as your financial Attorney. If you have more than one Attorney you can choose that they must all agree on each decision or any one of them could act on your behalf. This can be useful if you want to appoint 2 or 3 people however, if they are not all local to you to save hold ups while cheques and papers are sent round all of the Attorneys.
In relation to welfare provisions again you can appoint anyone, however as this is a very personal appointment we would always recommend that you appoint a friend or family member rather than a professional as it should be someone who knows you very well and who knows what you would want.
You can of course choose different people as your financial and welfare Attorneys as often people have different skills and the person best suited to look after your finances may not be the best person to make decisions on your welfare.
- Q4 When can a Power of Attorney be used?
Once registered with the Office of the Public Guardian, the financial side of things can be used straight away with your blessing however the welfare matters can only be used if you can’t make decisions on these matters for yourself.
If you didn’t feel comfortable with the financial powers being used straight away then you could simply chose not to register the document until it is needed, or insert a clause stating that the financial side of things could only be used if you were unable to make those types of decision for yourself (similar to the welfare provisions).
- Q5 What is a Power of Attorney and why would I need one?
A Power of Attorney allows you to appoint someone you trust to deal with your financial matters and/or matters relating to your welfare. This must be signed while you still have capacity and understand what you are doing.
It is sensible to put Powers of Attorney in place as a safeguard incase something happens to you and you are unable to deal with your finances (for example an accident or stroke). Without a Power of Attorney it would be very difficult and costly to get access to your bank accounts etc to pay for your care, mortgage etc.
Many clients who work abroad/offshore or travel a lot need Powers of Attorney to allow someone at home to deal with paperwork on their behalf, whilst they are unavailable.
It does not mean that you are giving away all of your power to deal with your own affairs, but merely that you are appointing someone else to act alongside you if required.