Powers of Attorney
Our lawyers are approachable and friendly and will explain everything relating to Powers of Attorney clearly and in plain English.
What is a Power of Attorney?
A Power of Attorney is a written document which allows you to appoint certain people to take actions or make decisions on your behalf in relation to your finances, your welfare, or both. These people become your Attorneys and it is up to you to decide what powers the Attorneys should have in relation to your affairs and when they should be able to act.
When can a Power of Attorney be granted?
A Power of Attorney can only be granted if the person making it is able to understand and explain their wishes. If the person is unable to understand the process and explain their wishes, then it is likely that they will be deemed to have lost capacity and they will be unable to grant a Power of Attorney. In such circumstances, then it may be that a Guardianship Order will require to be sought through the courts in order that their welfare and finances are safeguarded.
A Power of Attorney allows a person to state in advance who they would like to make financial and welfare decisions on their behalf should they ever become incapable of making those decisions themselves. A Power of Attorney will continue until they are either revoked by the person granting it or by the death of the granter.
Types of Power of Attorney
There are two different types of powers which can be granted in a Power of Attorney:
- A “Continuing Power” of Attorney covers decisions about your money and property,
- A “Welfare” Power of Attorney is used for decisions relating to your future health, care and your personal welfare.
While a Continuing Power of Attorney can be used to help you deal with financial matters before you are incapable of dealing with them yourself, a Welfare Power of Attorney can only be made once you are no longer able to make these decisions for yourself.
Who can act as Attorneys?
In reality, anyone can be an Attorney provided they have attained the age of 16 years and they themselves hold legal capacity. Whilst it is for you to decide who you would like to appoint as your Attorneys, we can give you guidance if you have any concerns or queries as to whom that should be. Whilst obvious choices might be trusted friends and family members, it is advisable to first check with them that they are willing and feel able to take on that responsibility.
We can also discuss with you the types of powers you wish to grant your Attorneys and when and how those powers should be used.
Who is likely to need a Power of Attorney?
Everyone should consider making a Power Of Attorney regardless of their age or health. In some cases, a person’s capacity to manage their affairs may become gradually diminished, for example as they grow older. In other cases, a loss of capacity can happen suddenly as a consequence of an accident or illness.
Some people grant Continuing Powers of Attorney to cover situations where they may be away or out of the country for significant periods of time, which enables their Attorney to tend to their personal and financial affairs in their absence. Either way, it is better for you to be prepared for all eventualities. See more here
How is a Power of Attorney created?
Three steps must be completed for a Power of Attorney to be created:
- Written Document
The precise powers that the Granter wishes their Attorney to have must be set out in a written document. Whether the powers are continuing, welfare or both must be stated clearly, and the document must be signed by the Granter. You should seek the advice of a solicitor to make sure this is appropriately drafted.
- Certificate of Capacity
The document must be signed by a solicitor or a GP confirming that they have spoken with the Granter immediately before they signed the papers and are confident that they understand the document. It must also be confirmed that the Granter has not been unduly influenced by third parties.
The Power of Attorney must then be registered with the Office of the Public Guardian for Scotland.
We will guide you through the process of putting a Power of Attorney in place and will help you to decide which powers you would like to include.
To make an appointment with our lawyers based in Alloa and Falkirk, call us today on 01324 622 888 or complete our online enquiry form and let us see how we can help you.