By Struan Douglas
Most people know of the importance of having a suitable will, although many hold off on finalising one when they should always have one in place.
Fewer people realise how essential it can be to have in place a Power of Attorney which would cover them should they lose the legal capacity to make decisions for themselves.
It is quite common for someone who has been given an early diagnosis of an illness such as dementia, which could cause lack of capacity, to then rush to make a Power of Attorney, but it really should be considered as an important requirement for most people, whatever their age or state of health.
While some degenerative diseases often cause a person to lose capacity over time, it could also just take one accident involving a head injury to leave somebody unable to look after their own affairs.
If someone is injured or becomes incapacitated suddenly, it can have a severe impact on family members and, if there’s no Continuing and Welfare Power of Attorney in place, the process of having a guardian appointed through the Courts can be difficult and time consuming. It can also be expensive and not what the family need at such a difficult time.
There’s more awareness these days of Powers of Attorney and a lot of financial advisors and other bodies recommend these to their clients.
Continuing and Welfare Powers of Attorney can appoint an attorney or attorneys to look after a person’s affairs from a financial aspect and welfare aspect.
The financial aspect speaks for itself and would allow the attorney to look after your finances and carry out day-to-day tasks and access funds.
The welfare side of things is more about how you’re looked after, where you live, etc. There’s a whole range of powers available in such Powers of Attorney which can be tweaked to suit the individual.
In the Power of Attorney, the individual usually appoints one or more attorneys to look after their affairs. These are generally designed to be effective only when someone loses capacity for themselves although, if the grantor wants to, some of the financial powers can be used even if the grantor still has full capacity.
This can be helpful when an adult child is dealing with a bank or energy company, for example, on behalf of a parent who still has legal capacity but perhaps doesn’t want to deal with matters themselves.
That’s not the case for welfare powers – the attorney can only make decisions on a person’s behalf once they have lost legal capacity.
It’s usual for such Powers of Attorney to be registered with The Office of The Public Guardian (Scotland), which maintains a public register of Powers of Attorney as well as dealing with other Guardianship and Intervention Orders.
They are there to supervise those who have been appointed and can investigate in circumstances where it appears that any attorney is not dealing with matters in the correct way.
They charge a fee of £79 to register each Power of Attorney. On top of that, there’s a solicitor’s fee for preparing the Power of Attorney and arranging for it to be signed. A solicitor or doctor needs to sign the certificate at the back of the Power of Attorney which confirms that the person granting it has capacity to do so and is not being forced to sign it.
Struan Douglas is Managing Director of Purdie & Co
For more information about Continuing and Welfare Powers of Attorney call Purdie & Co on 0131 346 7240 or visit https://www.purdiesolicitors.co.uk/services/wills-executries