Power of Attorney
Planning for your own or a relative's old age is an emotive and complex subject. You can rely on our extensive experience to guide you through - whether it's about dealing with a difficult situation here and now or anticipating a future scenario.
If an elderly relative becomes incapacitated and unable to conduct their own affairs, relatives sometimes have to resort to a costly and time-consuming court action to get the authority to deal with their house and /or money. Yet this situation is easily avoided.
Our solicitors are able to arrange for a relative to grant power of attorney while they are able to do so. This means that either yourself, another trusted family member, or a professional can look after the individual's affairs if needed.
A power of attorney is essentially the power to manage someone else's affairs because that person is incapable of acting on their own behalf. So, for instance, if the person in question:
• Suffers from mental disorder;
• Is physically or mentally disabled;
• Is unable to act by virtue of their age (a child); or
• Loses the ability to communicate,
A power of attorney will allow the management of those person's affairs in their best interests. Depending on the needs of the individual, differing powers of attorney may be necessary. We offer specialist advice on which power of attorney is most suitable. Click here if you need more information on powers of attorney.
Power of attorney in Scotland
Until the law was changed in 2000 with the enactment of the Adults with Incapacity (Scotland) Act 2000, there was little Scottish law in relation to powers of attorney.
Until 2000, power of Attorney lapsed when an individual who had granted power of attorney lost their mental capacity. This meant that the power often lapsed just as it was needed most.
This Act of the Scottish Parliament introduced the concept of (Continuing power of Attorney (basically a Power of Attorney which enabled the attorney to deal with the financial affairs of the granter), and the entirely new concept of the Welfare
These changes enabled the Attorney to deal with various aspects of the welfare of the granter once the latter had lost mental capacity.
If a power of Attorney was granted post 2001, certain principles apply to it:
• The power can only be used for the persons benefit, and that the benefit sought cannot be achieved by other means.
• This intervention must be the option which is 'least restrictive' to the granter's freedom.
• The wishes of the granter should be respected so far as is possible, as should the views of the nearest relative and the adult's primary carer.
• The person to whom the power is granted is under an obligation to encourage the granter to use and develop their skill in managing their own affairs as far as is possible.
• Failure to adhere to these policies may result in an investigation by a number of interested authorities.
Types of power of attorney
As stated above, there are three main types of power of attorney in Scotland: simple power of attorney:
• Simple Power of attorney
• Continuing power of attorney
• Welfare power of attorney.
Continuing power of attorney allows the person to whom the power is granted deal with the granter's financial affairs, and a welfare power of attorney allows the person to whom the power is granted make decisions about granter's personal welfare.
Both of these types of power of attorney can be combined. Both also continue in force after the granter loses their mental capacity.
Simple power of attorney
This is the most basic and is used in situations in which a person is temporarily unable to manage their own affairs, for instance because they are abroad. This power allows the person to whom it is granted to manage routine financial affairs on behalf of the granter.
Continuing power of attorney
A Continuing Power of Attorney is only valid if it is expressed in a written document which is signed by the granter, clearly states the granter's intention and is certified by a solicitor who has interviewed the granter.
Welfare power of attorney
A Welfare Power of Attorney is not exercisable unless the Granter is incapable or the Welfare Attorney reasonably believes this to be the case. The Power of Attorney enables the Attorney to deal with the Granter's personal welfare, including medical treatment, deciding on care and accommodation and cultural and social activities.
What if I don't have power of attorney?
If there is no power of attorney in place, and an individual loses their capacity, application will have to be made to the court for a Guardianship order.
Registering a power of attorney.
Before a Power of Attorney under the new rules can be exercised it must be registered with the office of the Public Guardian. The Public Guardian's office issues registration forms and useful guidance notes on registering a power of attorney. The guidance notes, however, are in the region of 80 pages in length.
It is necessary to keep a registered power of attorney updated. The office of the public guardian should be kept updated of any deaths, changes of address or any matter which may affect or bring about the termination of the power of attorney.
No close family members?
If you're in this situation, you can relax knowing that, if you have granted Gibson Kerr power of attorney, and you become infirm or unable to manage, you're in safe and good hands. As a family-run firm, we go beyond our professional responsibilities in how much we care about our clients. Numerous clients entrust us with their affairs in this way. We are absolutely determined to ensure that our clients are very comfortable, their wishes are carried out and their assets protected and used for their benefit.
Contact our solicitors
To discuss the drafting of a power of attorney for you or your family, click here or call us on 0131 208 2260 today.