22 Feb 2016

Everything you need to know about Powers of Attorney

Everything you need to know about Powers of Attorney


The numbers of Powers of Attorney registered in Scotland over the past year has risen by 18% - but what are they and how do they work?

Essentially, a Power of Attorney is a way of giving someone else permission to make decisions about your money and property as well as your health and personal welfare.

It usually sets out what you would want to happen in the future if you could no longer look after your own affairs.

What are the benefits

Granting a Power of Attorney allows you to place your financial and personal affairs in the hands of a family member, friend or other trusted person. 

When you are no longer able to make decisions yourself, due to lack of capacity for example, your Attorney would then step in to take matters on in your best interests. 

It can give you piece of mind knowing that your affairs will be dealt with by someone you trust and in the manner you wish.

Power of Attorney vs Guardianship Order

Forward planning is vital when it comes to Powers of Attorney, as they can only be granted by someone who has been deemed to have the full capacity to make such a decision. 

When a Power of Attorney has not been granted but is required and the individual no longer has capacity to grant one, an application would require to be made for a Guardianship Order. 

The application process is lengthy with actions taking around six months from beginning to end while the Courts consider all the facts.  It is advisable, therefore, to grant a Power of Attorney when you have the ability to do so and as such Guardianship Orders should only be used as a last resort to avoid the excess red tape and expense they bring.

Getting your instructions

Should you decide to grant a Power of Attorney, your solicitor will obtain your explicit instructions on questions, such as when the powers are to come into effect, whether the powers are to come into effect at the outset of incapacity and how incapacity is to be determined. 

This will ensure that the Power of Attorney is tailored specifically to your instructions and will accurately represent how you wish your affairs to be dealt with.

Continuing or Welfare?

There are two main types of Power of Attorney:

  • Continuing (This deals with your property and financial affairs)
  • Welfare (This type relates to your personal welfare, such as your care)

You can also grant a Power of Attorney which merges both of the above powers. 

Expert advice

It is important to note that the powers associated with Powers of Attorney do not automatically pass to family members when you lose capacity.  It is crucial that a Power of Attorney is put in place in plenty of time before they are required to ensure that your instructions are accurately reflected and to avoid the need for a Guardianship Order. 

As a Power of Attorney gives legal authority for someone else to act on your behalf, it is important to take advice from a solicitor. Aberdein Considine has decades of experience in dealing with such sensitive affairs. If you would like to speak to one of our solicitors, please call 0333 0044 333 or click here.

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