No Time Like the Present – It is always the right time to think about granting a Power of Attorney

The events of the past few years, and in particular the Covid-19 pandemic, have caused us all to pause and think much more about our own health and the health of our loved ones. As the world returns to a new normality, now is a good time to make sure that you have the correct legal protections in place should there come a time when you are no longer able make decisions about your own welfare and financial affairs.

Putting a power of attorney in place allows you to ensure that the right help is available when you need it most and are unable to look after your affairs or make decisions yourself.

Here we discuss the key points to think about in granting a power of attorney.

What is a power of attorney?

Many people believe that if a time comes and they are no longer able to make decisions for themselves, their family or a particular person such as a spouse, can automatically take over and act on their behalf.

The reality is that no one has the authority to make decisions on your behalf without being appointed by you as attorney. And it can be the case that by the time a power of attorney is needed that, it’s unfortunately too late for a person to grant one. This is because once you have lost your capacity you have also lost the opportunity to put a power of attorney in place.

A power of attorney allows you to choose the people that you trust to act on your behalf if you are unable to do so yourself. Putting one in place means your loved ones can help you when you may need it most and gives them the ability to manage your affairs, keeping them in good order. The document acts like a safety net – it may never be needed but it’s reassuring to know it’s there.

If you lose capacity and haven’t already granted a power of attorney your family will need to apply for alternative authority known as a guardianship order. This procedure involves an application being made to court, accompanied by several medical reports, and an appearance before a Sheriff. Guardianship orders are time consuming and can potentially cost thousands of pounds to put in place, not to mention the stress that it can place on your family at an already difficult time. All this can be easily avoided by setting up a power of attorney at a fraction of the cost.

In Scotland, there are three types of power of attorney:

• Continuing (Financial) Power of Attorney, which allows the granter to appoint someone as their attorney to look after their property and financial affairs;
• Welfare Power of Attorney, which allows the granter to appoint someone as attorney to make decisions in relation to their health and welfare if they become incapacitated; and
• Combined Power of Attorney, which allows the granter to appoint someone as attorney to look after both property and financial affairs immediately and health and welfare when required.

Unlike a will, which simply has to be witnessed, immediately prior to signing a power of attorney a solicitor or a doctor must interview you to certify your capacity. However, following the pandemic, legislation has been brought into force so there is no longer any requirement for a solicitor to be physically present to do this. As such, these meetings can now be done virtually, where this would be more convenient to your circumstances.

It’s natural not to want to think about a time when we might not be able to do things for ourselves, but whatever life brings now or in the future, it’s likely that we may need a little help along the way.

We understand that our clients have different needs and are busy so we are able to take power of attorney instructions in person, over the phone, through video call or via email and discuss with you the best options to ensure that the correct measures are in place if such a time comes when they are needed.

If you would like to know more about granting a power of attorney and advice on if this is right for you, contact Caroline Pringle or one of our Private Client specialists.

You may also be interested in the following insight articles:

• Making time for making a will
• New year, new you? There’s no better time to get on top of your life admin
• Managing your digital legacy before logging off for good
• Our feature in a BBC Radio Scotland podcast, how you can help elderly relatives manage their finances

Legal Disclaimer