A power of attorney is put in place to deal with an adult’s financial/property and welfare affairs. A person can legally appoint more than one power of attorney.
Even if someone is currently in good health, they may want to get a power of attorney set up now as a protective measure for the future.
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. You can easily avoid this situation with our help.
Power of Attorney Law in Scotland
Until the law was changed in 2000 with the enactment of the Adults with Incapacity (Scotland) Act 2000, the law in Scotland relating to powers of attorney was not entirely satisfactory.
Until 2000, powers 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 enables the attorney to deal with the financial and property affairs of the granter even if the granter then became incapable), and the entirely new concept of the Welfare power of attorney.
This new type of power of attorney enables the attorney to deal with various aspects of the health and welfare of the granter once the latter has 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 granter’s 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
Why you might need a power of attorney
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
Types of power of attorney
There are three main types of power of attorney in Scotland:
- Simple power of attorney
- Continuing power of attorney
- Welfare power of attorney
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 and it might be limited to a few specific powers. For instance, if you are in the process of buying or selling a property, but are out of the country during this time, you could grant a simple power of attorney to enable someone in Scotland to deal with the transaction for you. This type of power of attorney would end in the event that the granter loses their mental capacity.
Continuing power of attorney
Continuing power of attorney allows the person to whom the power is granted deal with the granter’s property and financial affairs and it continues in force if the granter loses their mental capacity
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.
Continuing and welfare powers can be combined in one document and one attorney can have both sets of powers, or different attorneys can be appointed to deal with different aspects.
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 may have to be made to the court for a Guardianship Order or Intervention 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. We can deal with the preparation and registration of the power of attorney and will explain to the attorneys what their responsibilities will be if they accept the role.
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 do not have any close family members or friends that you would want to appoint as attorney, or any that you would want to burden with that role, you can appoint one of our experienced solicitors to act as your attorney. You can then 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 law 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 always aim to ensure that our clients’ best interests are protected, that, their wishes are carried out and their assets protected and used for their benefit.
Power of Attorney Solicitors Edinburgh and Glasgow
Our power of attorney solicitors are able to arrange for a relative to grant power of attorney while they are able to do so. This means that either you, another trusted family member, or a professional can look after the individual’s affairs if needed.
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. We offer fixed fees for wills and powers of attorney, and also provide a discount on the cost when both documents are done together.
“It has eased some of the worry in dealing with the future situation in looking after our parents.”
