What Is A Power Of Attorney?
WHAT IS A POWER OF ATTORNEY?
When you grant power of attorney to someone or some people you effectively grant them the legal power to act as if they are you in certain circumstances. Even after they are appointed anyone you appoint can only act either with your permission (for example – you are not feeling well and wish one of your Attorneys to deal with something in your bank – pay a bill, collect cash etc) or if you are unable to act for yourself, which must be determined by a Doctor or a court.
Appointing a Power of Attorney is NOT giving any power or control of your life away. It is actually the opposite. You are taking control by ensuring whomever you appoint is your choice and this does not end up with someone you wouldn’t want or someone you don’t know.
There are two types of Power of Attorney in Scotland.
- Continuing – this deals with everything financial you deal with for yourself normally with the exception of your Will
- Welfare – as you might imagine – has everything to do with your health and welfare.
- One in four strokes in the UK happen in people under the age of 65 (Stroke Association)
- An estimated 42,000 people under the age of 65 in the UK have dementia – and nearly 1 million over 65. (Alzheimer’s Society)
- Accidents can affect anybody at any time, rendering them unable to manage their affairs.
Dementia, illness, stroke or brain injury due to an accident can affect people of any age. We associate losing mental capacity with old age but in fact, as the recent Covid-19 outbreak has shown, this can affect anybody at any point during their life.
Faq’s:
You can appoint more than one replacement attorney and you can change the rules about how or when they act.
According to the Alzheimer’s Society, more than 1 million people in the UK will have dementia by 2025. More than 1 in 5 people over 85 already suffer from this, and it is increasing, with rates significantly higher amongst women than men.
Accidents, strokes, brain injuries and Parkinson’s disease can also affect someone’s ability to make their own decisions. Handling your financial affairs can become virtually impossible, which is why charities that care for the elderly recommend everyone plans ahead. This could have the dual benefit of saving a great deal of money and easing the burden on their relatives.
“If one joint account holder loses mental capacity, banks and building societies can decide whether or not to temporarily restrict the use of the account to essential transactions only” – British Bank Association
The restricting of a joint account has severe implications as the joint owner cannot freely withdraw what is their own money. This could be devastating, especially if the joint owner has their only form of income, such as their pension, paid into this joint account.
“If your joint bank account is frozen, how will your partner pay essential bills such as your mortgage, utilities, car payments or insurance?”
NOT JUST DEMENTIA!
One of the biggest misconceptions nowadays is that Power of Attorney is only in case you get Dementia or a similar illness. This is not the case!
Just being admitted to the hospital now, you will be asked if you have a Power of Attorney in place. This is because, if you have not, then the hospital will take over your care and your spouse or children will have no say in your medications, operations or care. In years gone by, it was enough to be related to the patient in hospital but that has changed. Whenever there is any risk to a patient with the treatment, the hospital will not take this risk without the patient themselves or their Power of Attorney “signing it off.” A spouse or child will not be able to do this without a Power of Attorney.
SOME MEDICAL REASONS YOU COULD NEED YOUR POWER OF ATTORNEY:
- Dementia, Alzheimers or similar.
- Unconscious or comma
- An injury which prevents your signature
- Too ill to be able to deal with a matter
- Your temperature is too high and you cannot fully understand a matter
- Injury or illness which results in reduced mobility
- General poor health
- They must assume that you can make your own decisions unless it is established that you cannot do so.
- They must help you to make as many of your own decisions as you can.
- They must take all practical steps to help you to make a decision.
- They can only treat you as unable to make a decision if they have not succeeded in helping you make a decision through those steps.
- They must not treat you as unable to make a decision simply because you make an unwise decision.
- They must act and make decisions in your best interests when you are unable to make a decision.
- Before they make a decision or act for you, they must consider whether they can make the decision or act in a way that is less restrictive of your rights and freedom but still achieves the purpose.
- They must always act in your best interests
Although ‘Attorney’ sounds like it has legal connotations, attorneys don’t need to be legally qualified. The majority of people making a Power of Attorney simply choose family or close friends.
Some examples of people that you might choose to be your attorney are:
- Your husband, wife, civil partner or partner that you live with
- Your child or children
- Another family member such as a sister or brother
- A close friend
Your Attorneys are simply the people you have chosen to act for you, should you lose mental capacity.
Rather obviously, you need to choose at least one attorney. You can have as many attorneys as you like, although consider that the more you have, the more difficult it can be to get everyone to agree.
You must discuss the fact that you want someone to act as your attorney with them before you include them in your POA.
Before you select your attorneys, consider:
- How many attorneys do you want?
- Will the attorneys you’ve chosen be able to work together?
- Do you trust the attorneys that you’ve chosen to act in your best interests?
- How well do your chosen attorneys know you and how well do they understand you?
- How willing will your attorneys be to make what can sometimes be difficult decisions for you?
Don’t choose people to be your attorney just because you don’t want to offend them by leaving them out..
When making a Power of Attorney, remember that you can choose different people for each part. You may feel more comfortable leaving your finances (Continuing Power of Attorney) in the capable hands of certain family members, and the more personal decisions covered by the Welfare Power of Attorney for health and welfare in the hands of others.
In Scotland, the cost of a Power of Attorney involves two main expenses.
- Registration Fee: The Office of the Public Guardian charges £87 to register each Power of Attorney document. This fee applies to both types of Power of Attorney – Continuing (Finance) and Welfare. Therefore, if you require both, the total cost of registration will still be £87.
- Legal Fees: If you choose to use a solicitor, there will be additional legal costs. These fees can vary significantly, with some solicitors charging up to £1,000 plus VAT. However, our fees for a Power of Attorney in Scotland are much more competitive. Please contact us for a quote.
“If you do lose mental capacity and you don’t have a Power of Attorney, someone will have to apply to the Office of The Public Guardian for a Guardianship Order which must be granted by a Sherriff in Court The person who applies may not be the person you would have chosen yourself. The application process is lengthy and expensive. Once an order is granted, that person can make decisions for you, which might include:
- Paying bills and expenses on your behalf.
- Deciding how your day is organised.
- Deciding how you receive care.
- Deciding if your home will be sold.
The Deputy must always act in your best interests, but abuse does happen – including theft, fraud, misuse of property, possessions or benefits, undue pressure and neglect (OPG, 2015). This is one reason why making a Power of Attorney and nominating someone you trust to manage your affairs is a sensible choice.
Applying for a Guardianship Order is a long, complex and often intrusive process. It is also expensive. Making a Power of Attorney is a much simpler, cheaper and quicker way to elect somebody you trust to manage your affairs should you be unable to do so yourself. It puts you in complete control of who will make decisions for you, and the extent of their powers.
