Why it is never too early to get a Power of Attorney

Why it’s never too soon to put a Power of Attorney in place

If you’re in your 20s, it’s unlikely this comes up very often (ever?) as a topic of conversation.

Most people think that putting a Power of Attorney in place is a topic which only comes up later in life, perhaps as you approach retirement.

Folk seem to have many fears about, and objections to, Powers of Attorney, especially earlier on in life.

The primary purpose of a Power of Attorney is to guard against the risk of losing your legal capacity.

In an uncertain world, is that not a risk that everyone faces?

While no one can predict sudden loss of capacity, it is something you can plan for and a Power of Attorney is one of those ways.

A Power of Attorney allows you to exercise an important choice.

You get to choose who will deal with your affairs if you lose physical or mental capacity and cannot deal with matters yourself.

A Power of Attorney covers both permanent and temporary loss of capacity.

If you are aged 16 or over, you can instruct the preparation of a Power of Attorney. You must have capacity at the time you grant the Power of Attorney but you then have full choice over who you appoint and the powers that you give them.

While you retain legal capacity, you can change anything about your Power of Attorney at any time.

Accordingly, as your personal circumstances develop and change, so can your Power of Attorney.

There are two (or three) types of Power of Attorney.

Firstly, property and financial (also known as “continuing”) and, secondly, welfare; (and, thirdly, a “combined” Power of Attorney – where you have both financial and welfare in a single document (it is common to do so)).

A property and financial Power of Attorney allows your attorney or attorneys – as the name suggests – to manage your property and finances.

This type of power of attorney gives authority to your attorney(s) to manage these things as soon as your Power of Attorney is registered with the Government body which oversees the administration of Powers of Attorney (the Office of the Public Guardian, based in Falkirk).

Property and financial powers can be exercised by the attorney whether yourself retain legal capacity or not. They can exercise these powers for you even if you are 100% fine and well and capable, provided you agree and it is convenient for you. Your attorney will be able to assist you with financial matters at any stage of your life from (your) age 16 onwards and for any reason.

The reason it tends to be referred to as a “continuing” Power of Attorney is because its effectiveness can begin while you still have legal capacity and that validity then “continues” even in the event that you lose legal capacity.

A welfare power of attorney allows your attorney to make medical and welfare decisions on your behalf.

An example would be: decisions regarding medical treatment for you.

However, these powers can only be used by your attorney(s) if you have been declared to have lost legal capacity by a qualified medical practitioner. The idea behind this is that, before you lose legal capacity, you will always want to make welfare decisions about your own life yourself. There is no obvious reason why anyone with legal capacity would want to delegate welfare decisions about their own life to someone else.

Having a Power of Attorney in place does not mean giving up control of your own affairs while you retain legal capacity.

It is possible to appoint the same people to be both continuing and welfare attorneys.

Or you can choose to appoint different people to these roles, if you wish.

It can be tempting to adopt a “life’s too short” mentality but enjoyment of life to the full in the here-and-now can surely be improved if we know we have put plans in place which will make life easier for us – and for our closest loved ones – should we suddenly need help in running the most basic aspects of our lives.

People take out life insurance policies as a way of safeguarding their futures and a Power of Attorney can be viewed as a form of insurance.

Many people mistakenly assume that if they were to suffer sudden brain injury it would be straightforward for other family members to manage their financial affairs for them.

Additionally, they incorrectly assume that loved ones would readily be able to make potentially-important medical treatment decisions for them.

But if there is no Power of Attorney in place, however, it will not be assumed that those dearest to you will have such powers.

A Power of Attorney can be of great benefit where someone is temporarily incapacitated.

This could be through serious illness. Or perhaps where someone is going through difficulties with their mental health or addiction.

Once you have recovered, you can easily resume control of managing your own affairs, safe in the knowledge that the Power of Attorney remains there in the background ready to be reactivated should you once again become unable to manage these things yourself.

A Power of Attorney can be of use even in the simple situation where you may be travelling abroad for a significant period and you need someone to cover the payment of unexpected bills or to manage investments on your behalf.

What are the options if you lose legal capacity but you do not have Power of Attorney in place already?

As indicated above, by then, it is too late to grant a Power of Attorney. You can only do that while you still have legal capacity.

In this scenario, without there being a Power of Attorney in place, anyone wishing to support you as an incapacitated adult would have to make an application to the local Sheriff Court for appointment as your Guardian.

This process is not quick, can be expensive (though legal aid is available to cover some or even all parts of the process) and is inevitably stressful for your loved ones.

There is bound to be “delay” involved in any guardianship appointment and an associated build-up of a backlog of actions and transactions affecting your life which cannot be settled by the potential guardians until after their appointment by the court.

The appointment of any Guardian is entirely outwith your control.

It may be that the person or persons appointed would not have been your own first choice had you been able to select them yourself.

That’s another point in favour of granting Power of Attorney: you get to choose who is appointed, so it will definitely be someone in whom you have complete trust.

With Power of Attorney, you get the peace of mind of knowing that those making important decisions on your behalf are your considered choice and not appointed as a result of court proceedings where the range and detail of the factors considered in making the appointment could never be as wide as when you make the decision yourself.

With a Power of Attorney, in many cases, the hope will be that it is never going to be required at all or at least not for many years.

Your solicitor can store the registered attorney for you safely just in case.

Perhaps by having the comfort of knowing that you have the insurance of a Power of Attorney in place it will encourage you to live your life more fully than you might have done otherwise. Because you know you have that safety net in place.

How we can help

Should you have any questions about anything arising from this article or with regard to our Power of Attorney/Guardianship services, generally, please do get in touch with us. All initial enquiries are free of charge and without obligation to take matters further.

You can call one of our Private Client team on 01343 544077 or you can send us a Free Online Enquiry via this website.