Power of Attorney | What You Need to Know

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Why do I need a Power of Attorney?

A Power of Attorney is a bit like holiday insurance: it seems like an unnecessary expense at the time or that you will never need it.  But, when you do, you are glad you have it! You hope that you will never lose the capacity to make decisions for yourself, but in the event that you do, your Power of Attorney allows you to retain a degree of control over your future. You will formally decide who you trust to make decisions on your behalf in a time of need and what restrictions their powers should have.
One of the most common regrets that we hear from clients and their families alike is that they did not start planning for their care needs sooner. So, we often work with families who have not made any Power of Attorney arrangements. This is often because families don’t like talking about the ‘what if’s’ of elderly care arrangements, facing their or a loved one’s vulnerability and mortality, or thinking that they are old enough to give this matter consideration.
A Power of Attorney is not just for elderly people. We would encourage clients and family members of all ages to think about what they would like to happen if the unthinkable happened. Putting a Power of Attorney in place means that if anything should happen, there is clarity among friends and family on how you would like your affairs to be managed. You will have peace of mind knowing that the person you would trust most to look after you is, in fact, the person with the legal power to do so.

What is a Power of Attorney?

A Power of Attorney is a written document appointing and authorising a person of your choice to take actions or make decisions on your behalf in the event that you become incapable of doing things for yourself. The Power of Attorney can be restricted to financial matters only, this is known as a “Continuing Power of Attorney”. Secondly, one can bestow powers to deal with welfare matters only – a “Welfare Power of Attorney”.  The third option incorporates both in the one document and is referred to as: “Continuing and Welfare Power of Attorney”.  You can separate out the powers so that a particular person can only deal with your finances, while another looks after your welfare, or you can vest all powers in one (or more) Attorney. Your Attorney does not need to be a family member.

Who can grant a Power of Attorney?

Anyone over the age of 16, but there are restrictions if you have been made bankrupt. If relevant, this is something you should discuss with your own solicitor.

What does ‘incapable’ mean?

Incapacity is generally regarded as when you are either physically or mentally incapable of understanding and dealing with your own affairs. Your capacity could be impaired gradually as a result of old age or a progressive illness, or suddenly as a result of an accident or sudden onset of illness. A registered and licensed medical doctor will say whether you are incapable or not. We have made a guide to help you spot signs of decline in an elderly loved one, and seek further support.

What would happen if I don’t have a Power of Attorney?

No one has an automatic right to take actions on your behalf without the appropriate legal authority. Therefore, if you do not have a Power of Attorney and are unable to make decisions about your affairs, your family or friends may have to go to court to get the authority to act on your behalf. This is known as Guardianship provisions. At this stage, you would have already lost capacity and you would not choose who is appointed as your guardian.

Is a Power of Attorney just for elderly people?

Accidents or illness can happen to anyone, so while Power of Attorney is generally regarded as an “elderly person” thing, it is a sensible planning tool for people of any age, particularly if there are hereditary medical conditions that may be a factor.

Is a Power of Attorney only necessary for the wealthy?

No. While there is an initial cost to set up a Power of Attorney, it’s purpose is not just about looking after your money/property, but safeguarding your welfare in accordance with how you would like to be treated. In fact, it is a very effective tool in ensuring people with less money have an advocate for them in dealing with social work provided care.

Who can I appoint as my Attorney?

You can appoint anyone you want, so long as they are willing to take on this responsibility, are over the age of 16, and not currently declared bankrupt. This could be a family member or a friend, a solicitor or accountant, or a combination. For practicality, it is usually a good idea to have more than one attorney or maybe what is called a substitute attorney to step in if your original attorney can no longer do things for you. You can appoint someone to deal with your financial matters and someone different to deal with your personal welfare. It is good practice to discuss with the person you want to appoint before on what being an attorney actually involves. It will be helpful if you keep a note of the matters discussed and give your prospective attorney a copy too.

Where or how to get Power of Attorney?

While some stationery stores sell Power of Attorney packs, we would not usually recommend these. Any local solicitor will assist you in drafting a Power of Attorney, provide legal advice on the matter, and any other relevant advice, such as wills and tax planning.

Cost of Power of Attorney?

Solicitors will charge you for their services in drafting the Power of Attorney. These fees will often vary from firm to firm, depending on how complex you wish your document to be. To be registered with the Office of the Public Guardian, the Power of Attorney document must include a certificate signed by a practising solicitor or medical doctor. This confirms that you are capable of understanding the consequences of signing the Power of Attorney. Even if you do decide to use a pack or have a go at writing it yourself, you might be charged a fee for this service.

What happens to my Power of Attorney once I have signed it?

The Power of Attorney must be registered with the Office of the Public Guardian before it can be used, even if you are still capable of doing things for yourself. It is to be accompanied by an application form which contains a statement that your appointed Attorney(s) are willing to act on your behalf if and when required. There is also a registration fee payable. Once the Power of Attorney has been registered, your documentation and an authenticated copy, along with a certificate will be returned to you (and to the sender if sent by a solicitor). More details on how to make, register or end a lasting Power of Attorney can be found on the Public Guardian Office Scotland and Public Guardian Office England websites.

Can my Attorney use my Power of Attorney before I become incapable?

Yes, they can help you with your finances if you wish but they cannot make decisions about your welfare until you are no longer able to make those decisions for yourself.

Are there checks in place to ensure an Attorney does not abuse their powers?

Yes. Guidance as to what is required and expected of Attorneys is provided in the Code of Practice which is available on the Public Guardian Office Scotland and Public Guardian Office England websites. If suspected an Attorney is not fulfilling their duties properly, a request can be issued for the Public Guardian to investigate the matter.

Can I cancel my Power of Attorney once it is registered?

So long as you have the capacity to make the decision yourself, you can amend or cancel the Power of Attorney at any time. You should contact your solicitor or the Public Guardian Office Scotland and Public Guardian Office England offices for further information if you wish to do this.

Where can I get further help or information?

Your local Citizens Advice Bureau or solicitor will be able to help with issues involving Powers of Attorney. There is also lots of useful information available to you on the Public Guardian Office Scotland and Public Guardian Office England websites.

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DISCLAIMER: This article has been produced for guidance only and does not constitute legal advice. If you wish to put a Power of Attorney in place we recommend that you consult your solicitor.