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POA: The Basics of Power of Attorney

What is a Power of Attorney (POA)?

A POA is a legal document that appoints trusted individuals to make decisions on your behalf. To be valid, the Power of Attorney must be validly executed before a solicitor or medical practitioner and subsequently registered with the Office of the Public Guardian. The document itself gives a person or persons, known as the attorney(s), the authority to act on behalf of another person, known as the granter. The powers that an attorney can hold are split into two types: continuing (or financial) and welfare POA.

Continuing Power of Attorney

A continuing POA gives the attorney the powers to manage financial and administrative affairs of the granter. This may include operating bank accounts, selling property or signing documents. These powers can start from the point the POA is registered or when the granter has been deemed to have lost capacity.

Welfare Power of Attorney

A welfare POA gives the attorney the power to make decisions about the granter’s welfare. This could include, but not limited to, the decision of whether to proceed with medical treatment or if the granter should live in a care home. Unlike the continuing POA, the welfare powers can only be implemented once the granter has been deemed to have lost capacity.

The granter decides which powers to grant each attorney. The powers that each attorney holds could be continuing, welfare or a combination of both. There is no requirement for each attorney to possess identical powers.

Who should have a POA and when?

Everyone should strongly consider creating a POA. Life is unpredictable and capacity issues can affect anyone at any stage in their life. Capacity issues can be caused by numerous unforeseen circumstances. Some of which may include the onset of an illness or the unfortunate eventuality of getting involved in an accident. It is better to have a POA in place and not need it, than need it and not have it.

Due to the Coronavirus outbreak, the Office of the Public Guardian is dealing with a backlog of POA’s. This means that it is taking around six months for a POA to be registered after it has been submitted. POA’s cannot be enforced until they have been registered, therefore, it would be wise to start the process of creating a POA sooner rather than later.

Who can be an Attorney?

An attorney must be 16 years old or over and do not need to live in Scotland. They must agree to be your attorney, which includes having the capacity themselves to accept the role. It is advised that you chose someone that knows you well and who you would trust to manage your affairs in the future if needed. In addition, the attorney must not be subject to bankruptcy.

Aren’t POA’s expensive?

At Friends Legal we offer our services with fixed, VAT-inclusive pricing to create your POA at £150. We also offer a reduced cost for a couple POA at £290. This cost is fixed, therefore, you can have as many attorneys as you like, each with the powers you deem suitable and this will not affect the cost of our service. There is an additional £81 registration fee that is paid straight to the Office of the Public Guardian/ However, depending on your financial situation there is the possibility of an exemption from this registration fee.

What happens if I lose capacity and do not have a POA in place?

This can be a stressful and costly experience. An Intervention Order may be applied for which would allow a person to carry out a specific task on behalf of the adult who does not have capacity. Alternatively, a Guardianship Order could be applied for which could allow for a person to make decisions for the adult without capacity for a longer period.

Both applications are made through the Sheriff Court. However, the application process for both orders requires multiple pieces of supporting evidence to be submitted. Therefore, the additional stress placed on your loved ones at an already sensitive time could be avoided by preparing your POA now.

What if I want to cancel the POA?

You can cancel your POA at any time. This can be done through a revocation notice which can be submitted alongside the revocation certificate by a member of our By Your Side team. It is also possible to amend the powers initially granted to your attorneys or remove an attorney all together. To make such decisions, you must have the capacity to do so.  

How Friends Legal can help with your POA

Friends Legal have an expert By Your Side Team who will be able to help you take the first step to creating a POA. You can contact the team directly via the online enquiry form on our website or call directly on 0333 3580 583. The By Your Side Team will be happy to answer any questions and begin the process of creating your POA.

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