19 Mar 2013

Continuing & Welfare Powers of Attorney

Continuing & Welfare Powers of Attorney

Susan Bird, Senior Solicitor, highlights the importance of putting in place  a Continuing & Welfare Power of Attorney.

Susan Bird, Senior Solicitor, highlights the importance of putting in place  a Continuing & Welfare Power of Attorney.

In the past, mention of a Power of Attorney conjured up the idea of planning for old age; where memory related illnesses, such as dementia, were the sole reason for bringing these documents to mind. Crucially this preconception is changing.

A Power of Attorney is a legal document where a person (“the Granter”), appoints someone to act on their behalf (“the Attorney”) to step into their shoes should they lack the capacity to make their own decisions. The Attorney can make welfare or financial decisions on behalf of the Granter depending on the powers granted. The legislation which governs this is the Adults with Incapacity (Scotland) Act 2000, sections 15 and 16.

The drafting of a Power of Attorney is important in planning for every eventuality where a person lacks capacity to make financial or welfare decisions for themselves. Should a person become ill, disabled or incapacitated at any point in their life without having a Power of Attorney in place, even the closest of family members would be unable to step in to make the most basic decisions. The result would be that a person’s nearest and dearest would be prevented from looking after their best interests until such times as a Sheriff has granted them authority to do so. This could take weeks or even months to be processed through a court for this authority to be granted.

There are two main types of Power of Attorney to give consideration to, namely:

1. Continuing Power of Attorney:

This allows the Granter to give powers to their Attorney over their property, financial affairs and medical decision making. This can start immediately or can come into effect should a medical practitioner certify that the granter lacks capacity. It is for the Granter to choose when the powers come into force.

2. Welfare Power of Attorney:

This relates specifically to the welfare and health care of the Granter. This will come into effect only should the Granter become incapable. In utilising this form of Power of Attorney, it is important for any Granter to discuss their medical wishes with their Attorney to ensure these are known.

The Office of Public Guardian is the body responsible for registering each Power of Attorney and maintaining the register relative to same. Said register allows financial and medical institutions to check that the correct powers are in place prior to decisions being delegated to any appointed Attorney. This acts as a safeguard ensuring that any powers granted are not abused.

The main benefits to having a Power of Attorney are as follows:

  • Should you become incapacitated, your appointed Attorney can step in immediately. There would be no requirement for a Sheriff to make any court order.  Not only would your interests be protected, but any costs would be considerably reduced.
  • You control who will make decisions on your behalf. Your appointed Attorney will be asked to sign a form to confirm their acceptance of their appointment. The Sheriff may not appoint who you would have preferred so the Power of attorney allows you total autonomy in choosing who knows you best and who will act in line with your wishes.
  • You have peace of mind that your interests will be dealt with as you would wish them to be.
  • Medical and financial decisions can be made immediately. This is crucial especially in cases where the onset of illness is speedy.

A Power of Attorney should not be confused with a Will. They are very different legal documents with specific purposes. A Will deals with your affairs in death, a Power of Attorney throughout your life. At the point of drafting a Power of Attorney, you have the power to decide who your Attorney is, what powers should be granted to them and any specific exceptions that should be included. In essence it safeguards you for the future and for what may happen:  it provides certainty in an otherwise uncertain time in your life.

Aberdein Considine as a full service law firm, is able to provide guidance on all aspects of Power of Attorney documents. From our experienced private client solicitors, through to our full service financial services team, Aberdein Considine is unique in being able to offer the drafting, financial planning and guidance on the eventual implementation of a Power of Attorney. As a firm we will always act to safeguard a client's needs, whether this is welfare, financial or legal in nature.

Susan Bird, Senior Solicitor

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