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Power of Attorney

A Power of Attorney is a legal document whereby one person gives another person or persons authority to take action or make decisions on their behalf in the event they become incapable of making decisions regarding their own personal affairs. Usually the attorney is a family member, however, it can be anyone of the granter’s choosing, including a Solicitor or trusted friend. Powers of Attorney are governed by legislation known as the Adults with Incapacity (Scotland) Act 2000.

In Scotland, there are two types of Attorney, one that deals with money/property (known as a Continuing Power of Attorney) or one that deals with matters associated with health and personal matters (known as a Welfare Power of Attorney). You can appoint a different person to deal with each or the same person to deal with both. After a Power of Attorney is prepared and signed, it is only valid after it is registered with the Office of the Public Guardian and there is a £74 fee for registration.

When appointing an Attorney it is a good idea to appoint at least two attorneys or appoint one Attorney with a substitute who will act in the event the primary Attorney is unable to do so. This can avoid the requirement of a new Power of Attorney which, in some cases, may not be possible as the granter may now lack the legal capacity to grant the deed.

Who should consider granting power of attorney?

The simple answer is that everyone should give it careful consideration. It is never too early to have a Power of Attorney put in place. A common misconception is that they are only necessary for wealthy individuals or for older people. This is simply not the case and they apply to everyone. Another misconception is that the spouse of an incapacitated person is entitled to manage their affairs.

As the population ages and we all live longer (not necessarily in good health) it is a sensible thing to have a Power of Attorney prepared for when you do get older but similarly even younger people should prepare for the future. You may be working abroad, for example, or hospitalised for a lengthy period of time. During these periods your attorney can take care of your financial and property affairs.

The reality is that none of us know what is around the corner and a person can become incapable gradually or suddenly due to a medical condition or if they have an accident. In the absence of a power of attorney, making decisions for an incapacitated person can be very difficult for the families involved as it often requires more formal action such as a Guardianship application or an Intervention Order through the courts. This can involve a lot of time and stress for those involved and will involve specialist legal advice. There are also very onerous obligations on a Guardian including detailed accounts to the Public Guardian every year.

Should you have any questions regarding Powers of Attorney or if you wish to have one prepared please contact us and we will be happy to help you.

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