Why a Power of Attorney does not mean giving up control of your own affairs

What is the scale of dementia in Scotland and the UK?

“Dementia” is an umbrella heading, covering a spectrum of different conditions.

It describes a collection of neurological conditions that affect people’s brains.

In the UK, it’s estimated there are 944,000 people living with dementia.

With respect to Scotland, the estimate is that over 95,000 are affected by dementia. About 4,000 of that number are people under the age of 65. Alzheimer Scotland find they are increasingly hearing from young people who are worried about dementia – in the process of perhaps getting a diagnosis to that effect.

Dementia predominantly affects women. The proportions is around 2/3rds women to 1/3rd men with a dementia diagnosis.

There is no cure for the condition.

It’s expected that more than 1 million people in the UK will be living with dementia by 2030.

A diagnosis of dementia is one thing that might prompt you to consider consulting a solicitor with a view to granting a Power of Attorney.

What is a Power of Attorney?

A power of attorney is a legal document that allows you, the granter, to appoint a person or persons to make decisions about your property and your finances – and also your welfare.

There are 2 types of Power of Attorney in Scotland.

One for property and finances; the other to cover your personal health, care and welfare.

These powers of attorney can be prepared as separate documents or as a single document, known as a Continuing and Welfare Power of Attorney.

The general legal view is that these are vital documents for every adult to have.

So a Power of Attorney is not just, say, for someone who has received a diagnosis of dementia. It’s a form of insurance – future-proofing – against a sudden loss of capacity, whether temporary or permanent.

Powers of attorney can be useful even to people who have not lost legal capacity.

A Continuing Power of Attorney is called “continuing” because it can be used straight away.

It can be used as soon as it has been signed and registered with the Office of the Public Guardian, which is a requirement for all Powers of Attorney (“PoA”).

The continuing element can be practically useful in the case of people who still have capacity but are perhaps physically less able than they were or have become nervous about dealing with things that had previously been normal and “everyday” for them.

Specifically, you might be nervous about using the phone or going to the bank.

A PoA can be a useful document to allow a member of your family or a friend to begin to help supporting you. This financial element to the PoA continues to be effective after the granter has lost legal capacity.

So a financial PoA is not just for people who have lost capacity: it can be really useful before then.

A welfare PoA is different.

That can only ever be used when the granter has lost capacity to make their own welfare decisions.

This is a crucial point about Powers of Attorney.

People are understandably concerned that a PoA means they are relinquishing control of their own affairs. The worry is that it is giving up too much power to somebody else.

It’s true that your choice of attorney is of central importance.

It has to be someone you feel comfortable appointing – a person you can trust absolutely.

Someone who will make the right decisions for you – and who will take your views into consideration when acting on your behalf.

The principles underlying Adults with Incapacity legislation in Scotland mean that where an attorney is making decisions – especially welfare decisions after the Adult has lost legal capacity – they should be the decisions the Adult would have made; not the decisions the attorney wants to make, without reference to the wishes of the Adult (whether these wishes can actually be found out at the time or have to be worked out from how the Adult probably would have wanted things to be done).

It’s crucial to remember that, while you retain legal capacity, you always hold a trump card.

You will make your own decisions and be responsible for your own decisions.

Capacity is fact- and decision-specific.

You might have lost capacity to do some things but retain capacity to do other things.

Your attorney, when operating your PoA, in acting for you, should be mindful of that. In other words, that there are still some things that you can do for yourself, even if there are other things that you need support with.

People worry about when a PoA will come into force. Is it “kept in the bottom drawer” until such time as you lose capacity or can this person you have appointed as your attorney suddenly step in and make decisions that you are not okay with? As long as you retain legal capacity, the answer is that you retain an overriding power to make and be responsible for your own decisions.

How we can help

If you have any questions at all about granting a Power of Attorney (or making a Will), please do not hesitate to contact us. Phone us on 01343 544077 or send us a Free Online Enquiry via this website. All initial enquiries are free of charge and without obligation to take matters further. We are here to help you.

We’re always glad to receive questions because they allow us to add to the information on this website – hopefully for everyone’s benefit. Please get in touch if you have any supplementary or related questions based on this article.