In honour of Power of Attorney day, on 20 November 2019, Lindsay Maclean and Stuart Millar from our Edinburgh-based Personal Law team have made a short video to bust the myths about Powers of Attorney.
Video Transcript: Busting the Myths about Power of Attorney
Myth 1: Powers of Attorney are only for elderly people – Not true
Stuart Millar, Associate (SM): A Power of Attorney is useful for anyone who loses their capacity due to illness or an accident and obviously that could apply at any stage throughout your life.
Myth 2: Powers of Attorney shouldn’t be put in place until you need them – Not true
Lindsay Maclean, Head of Personal Law (LM): A Power of Attorney is used if you’ve become incapable of making decisions for yourself, or of speaking for yourself, so it’s better that you’ve put it in place while you’re still able to and then it’s ready to be used when you need it.
Myth 3: Powers of Attorney take effect as soon as they’re granted – Not necessarily true
SM: In relation to welfare powers, so they’re decisions about where you live and medical treatment, they can actually only ever come into effect in the event that you’re assessed as no longer being capable of managing your own affairs.
LM: For continuing powers, which is anything relating to your finances and your property, there are two different ways they can be put into place. You can put them into place to be effective straight away or delay them so that they’re only used if you become incapacitated or if you want them to be used.
Myth 4: You’re signing your rights away if you grant a Power of Attorney – Not true
SM: For as long as you have the capacity to make those decisions then you’re still absolutely entitled to do so and the Power of Attorney doesn’t affect that.
Myth 5: Your attorneys can use your money for whatever they want – Not true
LM: There are guiding principles which set out how an attorney should act, for example they should always act in your benefit and they should take account of your wishes whenever they can.
SM: In addition, there are certain safeguards in place so, for example, the Office of the Public Guardian, which is the body that oversees Powers of Attorney and Guardianships, they have powers to investigate if your attorney is not acting in accordance with those principles.
Myth 6: Your spouse or family can organise everything for you without needing a Power of Attorney – Not true
SM: If there’s no Power of Attorney in place nobody, whether that be your spouse or other family members, is automatically entitled to make those decisions on your behalf.
LM: Your family may have to go to the Court to ask for court-appointed Guardianship powers, and that Guardianship process is much longer than having a Power of Attorney in place and it’s more expensive. It’s also more stressful for your family because they’re having to ask a court to appoint them powers.
Myth 7: An attorney is the same as an executor – Not true
LM: An executor is someone named in your will to manage your estate after you’ve died, whereas an attorney is someone you’ve appointed to act for you during your lifetime.
SM: An executor and attorney can be the same people or they can be two separate people depending on who you feel is most appropriate for the role.
Contact us about Powers of Attorney
At Gibson Kerr, our Personal Law Solicitors in Edinburgh and Glasgow can talk you through making a Power of Attorney when we have a meeting with you. If you would like to arrange a meeting, or have any questions about the process, please do not hesitate to contact us. We offer fixed fees for wills and powers of attorney.
