Power of Attorney is an essential legal document that allows someone else to make decisions on your behalf if you become incapable of doing so yourself. It’s a crucial step in planning for the future and ensuring your wishes are respected.
This can cover financial/property matters, personal welfare, or both. At d and h, we understand that the future is unpredictable, and having one in place ensures your affairs are managed according to your wishes if you can’t make decisions for yourself.
Types of Power of Attorney
There are three types of Power of Attorney:
- Continuing Power of Attorney — Grants authority to deal with your financial and property affairs. This can take effect immediately and continue if you become incapable, or only begin if you lose capacity.
- Welfare Power of Attorney — Allows someone to make decisions about your health and personal welfare. This only comes into effect if you are unable to make these decisions yourself.
- Combined Power of Attorney — Incorporates both continuing and welfare powers.
Selecting the right type of Power of Attorney is crucial and should reflect your unique circumstances and future considerations. It’s essential to carefully evaluate your needs and, if necessary, seek guidance from legal professionals to determine which type is most suitable for your situation. Without a PoA (Power of Attorney), no one has the automatic right to make decisions on your behalf if you become incapable. This could result in someone having to go to court for a Guardianship Order, which can be time-consuming and stressful. A PoA provides peace of mind, knowing your affairs will be managed according to your instructions.
When Should You Make a Power of Attorney?
Establishing a Power of Attorney as a proactive measure to safeguard your future is highly advisable. There are several scenarios where having a PoA in place proves particularly beneficial.
Firstly, in the event of a medical emergency, an unexpected incident might render you incapacitated and unable to communicate your consent for medical treatments. In such situations, a PoA becomes invaluable, allowing your appointed attorney to make critical healthcare decisions on your behalf. This ensures that your medical care aligns with your preferences and that there are no delays in receiving necessary treatment.
Secondly, if you frequently travel for business or leisure, a Power of Attorney can be essential. During extended periods away from home, there may be financial, or property matters that require attention. With a PoA, you can empower a trusted individual to manage these affairs in your absence, providing you with peace of mind that your financial and personal matters are being handled efficiently and according to your instructions.
By setting up a Power of Attorney, you take control of your future, ensuring that trusted individuals can step in and make decisions that reflect your wishes, whether it’s managing your health care during a medical emergency or handling your affairs during prolonged travel.
Appointing a Power of Attorney
Establishing a Power of Attorney in Scotland involves several important steps to ensure the document accurately reflects your wishes and complies with legal requirements. Here’s a detailed guide to help you through the process:
Firstly, decide on the powers you need to grant. This decision depends on your personal circumstances and future needs. At d and h, our experienced team can assist you in considering both long-term and short-term implications, ensuring yours aligns with your wishes.
Next, choose your attorney carefully. Select a trusted individual who is both capable and willing to take on the responsibilities involved. It is essential that this person understands what is required and feels comfortable with the role.
Then, draft the document. While it is possible to draft the Power of Attorney yourself, it is recommended to use a solicitor to ensure nothing is overlooked. If you choose to draft it independently, refer to the guidance provided by the Office of the Public Guardian and consult the Code of Practice for Continuing and Welfare Attorneys to make sure all necessary powers are included. After drafting, the document must be certified by a solicitor or medical practitioner. They will interview you to confirm that you understand the PoA and are not under undue influence.
Finally, register the Power of Attorney with the Office of the Public Guardian (Scotland) to make it effective. This involves submitting the document along with a registration form signed by the attorney to confirm their willingness to act. It is important to note that there is a fee to pay when registering.
Responsibilities of an Attorney
Being appointed as an attorney under a Power of Attorney is a significant responsibility. It involves making important decisions on behalf of another person, requiring a thorough understanding of legal and ethical duties.
As a welfare attorney, you may find yourself making critical decisions regarding the grantor’s personal care and well-being. This could include choices about medical treatments, living arrangements, and day-to-day care. For instance, you might need to decide whether the person should move into a care home or receive care at home, choose healthcare providers, or consent to or refuse specific medical treatments. These decisions can have profound impacts on the person's quality of life, so it’s essential to consider their best interests and known wishes at all times. Empathy, clear communication with healthcare professionals, and a strong understanding of the person’s preferences and values are necessary in this role.
If you are appointed as a continuing attorney, you will be responsible for managing the grantor’s financial and property affairs. This involves a broad range of tasks, from paying bills and managing bank accounts to handling investments and property transactions. You will be legally required to keep meticulous records of all financial transactions and decisions made on behalf of the grantor. Accurate record-keeping ensures transparency and accountability, and it can protect you in the event of any disputes or queries about how the grantor’s finances are being managed.
Before agreeing to take on the role of an attorney, fully understand the responsibilities and potential challenges involved. You must act in the best interests of the grantor, avoid conflicts of interest, and respect their wishes and preferences. Be prepared for the time commitment and the need to make difficult decisions, sometimes under pressure. Effective communication and a good understanding of financial management are crucial. Ensure you have a support network of professionals, such as experienced solicitors, to provide advice and assistance.
Looking for Legal Advice & Help?
Establishing a Power of Attorney is a vital step in securing your future and ensuring your wishes are respected when you can no longer make decisions for yourself. Whether you’re unsure about which type of Power of Attorney is right for you or need assistance with the application process, our experienced team is ready to help. We will work closely with you to ensure yours reflects your unique circumstances and long-term wishes, providing peace of mind for you and your loved ones.
Don’t wait until it’s too late — take proactive steps to protect your future today. Get in touch with our team to discuss your needs and begin the process of setting up your Power of Attorney. Your future is worth safeguarding, and we are here to support you every step of the way.