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A Power of Attorney (PoA) is typically used when you are no longer able to make decisions for yourself and, as such, younger people may feel they do not need one yet. However, unforeseen accidents and illnesses can happen to anyone, no matter how old you are.
As a young person, it’s important to note that permanent incapacity is not the only reason for having a PoA. It can also allow someone you trust to look after your affairs on a temporary basis, for example, to pay bills if you go into hospital.
If you’re unsure whether you should set up a Power of Attorney, speak with a member of our private client team here.
In Scotland, no one has the legal authority to make decisions on your behalf, not even your relatives or partner. Without a PoA, someone would need to apply to the court for a Guardianship Order, and this is often a stressful, costly and lengthy process.
There are two types of PoA available in Scotland: a continuing PoA and a welfare PoA.
A continuing PoA provides a nominated person or persons the authority to deal with money and property on your behalf. The benefit of having a continuing PoA is that it can be activated immediately or upon certain, specified events.
If you were considering going abroad to work or travel, this document could give someone authority to manage your bank account, send you money or pay rent in your absence. It could also be used to provide a blueprint for how your financial affairs are to be conducted if, for example, you were diagnosed with a progressive disease.
A welfare PoA involves appointing someone of your choosing to make decisions about your health and welfare should you lose the capacity to do so. It will only come into effect if you become incapable and cannot be used at any other time.
The document allows you to set out specific instructions, such as accepting or refusing specific medical treatments. It can also give the Attorney the power to pay the costs of any medical procedures or residential care you may need.
It’s important to give serious consideration to who you want as your Attorney as this person will be acting on your behalf and making important decisions. For a continuing PoA, you could appoint a partner, trusted friend, family member, or legal professional. For a welfare PoA, the Attorney must be an individual and is usually someone who knows you well due to the nature of the role.
You can always make provisions in the document for a substitute Attorney to take over if the appointed Attorney cannot fulfil the role in the future. You can also appoint the same person to act as Attorney for both financial and welfare decisions.
There are legal safeguards provided which prevent people from Attorneys the authority bestowed by a PoA. The law dictates what is to happen when specific medical issues arise and, if there were any disagreements between your Attorney and a medical professional, they would be legally obliged to seek a second opinion.
The PoA has to be made in writing and must be certified by a solicitor or medical practitioner. Solicitors usually arrange this and will interview you to make sure you fully understand the implications of granting the authority.
Once drafted, the PoA must be lodged with the Office of the Public Guardian before it can take effect. The exception to this is if you do not intend for the powers to continue in the event of incapacity. If you are going on holiday and only wish for your chosen Attorney to have these powers during this particular period, the document does not need to be registered.
You can revoke the PoA at any time. If you would like to remove your Attorney, amend their powers, or appoint a new Attorney, our team are available to help you today.
It may be that the PoA is never needed or activated; however, planning for the unforeseen can ensure that you retain control of specific aspects of your life and what happens to you should you become unable to make those decisions.
Practical arrangements made at an early age can make the years ahead a lot easier for you and those you love should the unexpected happen. To find out more, you can view our Power of Attorney Technical Guidance guide here or speak to our approachable team on 0141 620 0800 or complete our online contact form.
