What is a Power of Attorney?
A Power of Attorney is a written document which specifies who you want to act as your Attorney, what powers your Attorney should have, and when the powers should take effect. This can be decisions about your welfare, your finances, or both. Where your Will sets out your wishes upon your death, a Power of Attorney sets out your wishes during your lifetime.
Who could be my Attorney?
The Attorney you appoint has the authority to step into your shoes to make decisions, and so you should think carefully about who you chose. It should be someone who is over 16, willing to take on the role and is someone you trust. In most cases, an Attorney will be a relative or close friend. This can also be a professional, such as an accountant or solicitor. Your financial attorney must not be bankrupt at the time of the being appointed as your Attorney.
There is no limit to the number of Attorneys you can appoint.
You may appoint different people as your Financial Attorney and Welfare Attorney.
You can appoint a sole Attorney, or joint Attorneys. In either case, you may wish to appoint substitute Attorneys in the event that your first choice Attorney is no longer able or willing to act. Where joint Attorneys are appointed, you require to decide whether all Attorneys must act together when exercising their powers, or whether each Attorney may exercise their powers on their own.
How do I know what powers I need in my Power of Attorney?
There are two main types of Power of Attorney:
Continuing Power of Attorney
The first type is known as a Continuing Power of Attorney and is the type needed to allow an Attorney to make decisions about your finances and property. This can relate to your day to day affairs, such as banking, tax, and household matters. These powers can be exercised as soon as the Power of Attorney has been registered with the Office of the Public Guardian (Scotland), or they can be delayed until a doctor has certified that you are unable to make decisions regarding your affairs.
Welfare Power of Attorney
The second type is a Welfare Power of Attorney, which would allow your Attorney to make decisions about your health and welfare. This would allow your Attorney to discuss any treatment which your medical advisors are recommending for you with your medical advisors, and to indicate if the treatment proposed is something that you would have been happy to proceed with, had you been able to make the decision yourself. Welfare powers can only come into operation when you are no longer able to make decisions for yourself.
Please note that none of these powers can be exercised unless the Power of Attorney has been registered with the Office of the Public Guardian (Scotland).
The powers listed in the Power of Attorney document are usually extensive because, should your Attorney require to exercise any powers which are not listed in the Power of Attorney document, a supplementary document would require to be granted by you. If you no longer have capacity to grant this supplementary document, then your Attorney may have to apply to the Court.
You do not have to include all of the recommended powers in your Power of Attorney. You may review the recommended powers and decide that there are some that you do not wish to be included.
If there are any powers which you feel are required that are not included in the recommended powers, please let us know, and we can ensure to include them.
Can I change my mind about my Power of Attorney?
Should you, for whatever reason, at any time after registration of your Power of Attorney with the Office of the Public Guardian (Scotland), wish to
- withdraw any of the powers granted in your Power of Attorney;
- add additional powers to those contained in your current Power of Attorney; or
- wish to withdraw the appointment of any of your Attorneys
then this can be done by serving the appropriate Notice on the Office of the Public Guardian (Scotland) and the relevant Attorney or Attorneys, provided you have capacity to do so.
Do I need a Will as Well as a Power of Attorney?
We would strongly recommend that you have both. A Power of Attorney will cease on your death. The Executors named in your Will are responsible for administering your estate after death, in accordance with the terms of your Will, or in accordance with the relevant law if you did not leave a Will.
If you wish to receive more information about preparing a Will, or wish to instruct us to prepare one on your behalf, please do not hesitate to contact us. We will be happy to provide further advice, and prepare a Will for you for a low, fixed fee.
For more information about setting up Power or Attorney, please contact our By Your Side team. We provide a wide variety of ways to contact the team and our opening hours span more than the usual 9-5 – so you can get in touch at a time and in a way that suits you.