On one afternoon recently, we had 2 calls from people who wanted to discuss “the accident that I had recently”.
Both put the phone down when our receptionist asked them if they realised that they were calling a firm of solicitors.
The cold callers hoped to take something off the hands of the person answering the phone – a personal injury claim – and in an unsolicited fashion. In this article, we hope to persuade you (gently) that, with Power of Attorney, the future is in your hands. (And you found this article; we did not hunt you down like a cold caller would).
Yes, a power of attorney involves an element of giving up powers and responsibilities to others but it allows that to happen in a planned and controlled way.
Did you know that one in fourteen of us will develop dementia at some point in the future?
This loss of capacity is likely to result in a person being hospitalised at some point.
Did you know that, without power of attorney, you cannot act for your husband, wife, mother, father, or anyone else, should they lose capacity?
You might think that if, say, you are married and have grown up children, surely your family can act for you and make decisions on your behalf if you lose capacity?
Unfortunately, no one has an automatic right to do this.
There has to be a legal document in place by you, appointing your chosen person or persons as your attorney. If no one has been legally appointed by you to act, no one has the legal authority to do so.
What do we mean by incapacity?
Losing capacity means that you are no longer able to look after your own financial and personal affairs. This could be due to illness (e.g. dementia or stroke) or because of an accident (e.g. a head injury).
The Adults with Incapacity (Scotland) Act 2000 sets out various types of situation in which you could be deemed to be legally incapable of managing your affairs:
- Incapacity to make decisions;
- Incapacity to act on decisions you have made;
- Lack of capacity to communicate your decisions;
- Incapability of understanding decisions;
- Incapacity to retain memory of decisions you have made in relation to any particular matter due to mental disorder;
- Incapability of communicating due to physical disability.
What is a power of attorney?
It is a legal document, in writing, giving someone else authority to take actions or make decisions on your behalf.
It is up to you to chose the person or persons you want to act as your attorney and what powers you want them to have.
A power of attorney is intended to ensure that your financial affairs and personal welfare can still be dealt with and protected in the event of you losing capacity and being unable to act on your own behalf.
The process starts by you having a discussion with someone you trust to take action on your behalf should the need arise. You want to make sure that that person is happy to be appointed as your attorney and that he or she understands your wishes.
The next step after that would be drawing up a power of attorney document and the best advice is to contact a solicitor to help you get it right.
What sorts of things does a power of attorney deed cover?
It can cover both financial and welfare matters or you can have separate documents to cover your financial affairs and welfare issues.
Financial provisions can include power:
- to purchase and sell heritable property (e.g. your house);
- to claim and receive all pensions, benefits and allowances on your behalf, or
- to operate bank accounts.
These are just examples; many other powers can be included or left out, as appropriate, depending on your circumstances.
Welfare provisions can include power:
- to have access to your personal information;
- to decide where you live;
- to agree to or withhold consent from medical treatment.
Again, this is just a selection of some of the powers which are most commonly included; you can tailor the provisions in your case depending upon your particular needs and circumstances.
You can appoint anyone you wish to be your attorney.
It could be a family member, close friend, solicitor or other professional advisor.
You have the choice as to whether you include the same person or persons as both financial and welfare attorneys. You could have separate attorneys to carry out the different functions.
In most cases, it is better to appoint more than one attorney. This covers the situation where your attorney is unable to act for any reason. You can appoint joint attorneys with similar or different powers or one or more substitute attorneys to take the place of an attorney who is no longer able to act, for whatever reason (e.g. death, loss of capacity or resignation).
A lot of people worry about what they see as a loss of control or power over their own lives if they put a power of attorney in place, so be aware of the following points.
A power of attorney can be used as a ‘rainy day’ document.
It does not necessarily follow that if you sign the document it comes into force immediately. If you do not need your attorney to exercise their powers immediately, the document can be stored in a safe place ‘for a rainy day’. (A possible safe place would be the safe at your solicitor’s office.) It can be stored there until it is required.
On the other hand, if you do wish your attorney to be able to act immediately, the document must be registered with the Office of the Public Guardian. They need the deed itself together with a registration form signed by your attorney and the relevant registration fee. OPG then issues a certificate to your solicitor and to you.
Once a power of attorney has been registered, the financial powers are effective immediately but the welfare powers are only effective once you lose capacity. In other words, welfare powers only come into force once you are no longer able to act on your own behalf. It is not the case that your attorney will suddenly be able to determine, for example, where you should live, assuming you still have capacity.
Another worry might be where you appoint your spouse as attorney and then you split up.
In that case, unless the power of attorney deed specifically provides to the contrary, your spouse’s powers to act on your behalf would cease upon your formal separation or divorce.
What about the situation where you register a power of attorney but you later change your mind about wanting to have it in place?
As long as you have capacity, you can revoke the powers granted in your power of attorney. To do that, you would need to give written notice to OPG.
What about the concern as to how your attorney will know your wishes if you lose capacity?
Obviously, that is a problem, in theory, but it emphasises how important it is that you should discuss both the financial and welfare powers with your attorney and make sure that they know what decisions/actions you would want to be taken on your behalf in the event that you lose capacity.
It’s important that you have a very high level of trust in your attorney to ‘do the right thing’ for you.
Are powers of attorney just for elderly people?
Anyone over the age of sixteen can grant a power of attorney. Of course, accidents or illness can occur at any age.
The sooner you have a power of attorney in place, the better. As we have mentioned, the deed does not need to be registered straight away – it can be kept in a safe place and only brought out and registered when your attorney is required to begin acting on your behalf.
About forty-five thousand people register power of attorney ever year in Scotland.
Health and Social Care Scotland have set up a website –
It is called My Power of Attorney and you can access it here.
The site has a wealth of useful information in the form of articles, videos and downloadable leaflets. The plan is to have a first, national, Power of Attorney Day, on 20 November 2019 – and possibly annually after that.
With power of attorney, the future is in your hands.
We recommend you to begin making your plans today (but we will not cold call you to encourage you to take that step).
How we can help
If you have any questions about this article or about our power of attorney/guardianship services, generally, please get in touch with us. All initial enquiries are free of charge and without obligation.
Links you might like
The following articles on this website are relevant to issues to do with power of attorney (and the related topic of guardianship) and you may find it helpful to refer to these if you are considering whether or not to grant a power of attorney.
- Why every adult should have a Power of Attorney.
- Reasons why you should not leave the making of a Power of Attorney to the ‘last minute’.
- An article linking to a Law Society of Scotland video which explains about Powers of Attorneys.
Image: Double rainbow near Inchberry, Moray – August 2019.