Planning for the future
The best time to put a Power of Attorney in place is when you don't need it!
Power of attorney (PoA) in Scotland is a legal document that allows you to appoint someone to make decisions on your behalf if you are unable to do so.
We would encourage all residents age 16+ to think about putting a PoA in place.
It prevents you being in hospital longer than you need to be, means you get the care you would wish for and your finances can be managed if you're unable to, such as making sure bills are paid on time.
The best time to put a PoA in place is when you don't need it!
The law says that everyone over 16 years old in Scotland has the legal capacity to make decisions, unless a legal decision is made that this is not the case.
A Power of Attorney is a legal document that allows someone to make decisions on your behalf when you no longer have the mental capacity to make an informed choice. The person who gives someone else the powers to make decisions on their behalf is called 'the granter' and the person who is given the powers is the called 'the attorney'.
A key distinction to make is that a Power of Attorney document is not a Will and it does not relate to matters that apply to you after you die.
Your next-of-kin, family or other people close to you do not have the legal right to make decisions for you if you lose the ability to do so yourself, unless they have Power of Attorney in place.
PoA prevents you being stuck in hospital - without it the courts need to sign off on who can make decisions for you, and this can be a legthy process. It also means you get the care you would wish for and your finances can be managed if you're unable to, such as making sure bills are paid on time.
- Continuing Power of Attorney enables someone, or more than one person, to look after your property and financial affairs. Continuing powers could include managing your bank accounts, buying or selling property and claiming benefits on your behalf. You can choose whether a Continuing Power of Attorney takes effect straight away, so someone can help you to manage your money now, or only comes into effect if you lose the capacity to make your own decisions later on.
- Welfare Power of Attorney enables someone, or more than one person, to make decisions about your health and welfare only if you are unable to do this yourself. Welfare powers could include making decisions about where you will live, how you will dress, what you will eat and what medical treatment and care you will receive.
- Combined Continuing and Welfare Power of Attorney enables someone, or more than one person, to look after both your financial affairs and health and welfare decisions.
In Scotland, if somebody is incapable of managing their finances or making decisions about their welfare, the Adults with Incapacity (Scotland) Act 2000 provides protection for them. The Act states that a person may not have mental capacity if they are unable to: make or act on decisions, communicate decisions, understand decisions, or remember decisions.
This process may take a long time, cost a lot and above all it can be a very stressful and emotional experience for everyone involved. Importantly, this person may not be who you would have chosen as your Attorney. They may also struggle to know what your wishes would have been and this could lead to very different decisions being made to what you personally would have wanted. You can avoid this by granting someone as your Attorney to make decisions on your behalf, whilst you are still capable.
Common problems if there is no PoA in place
Sarah's husband has been left unable to speak and is confused following a stroke. They don't have joint bank accounts therefore she can't access her husband's money. She is struggling to pay the bills and their daughter's university fees.
Mary feels frustrated that she has been excluded from meetings and decisions about her sister's health and care. Her sister has been assessed as no longer having mental capacity and now resides in a care home.
Andrew became ill very suddenly and can no longer make decisions about his finances. His children disagree about who should go to Court in order to act on his behalf. Andrew always knew that he would prefer his son to do this for him (and had let him know this), but he didn't know he had to officially state it in a POA.
You can choose one, two or several people to be your attorney. You could grant continuing (financial) powers to one person, and welfare powers to another. You could also have more than one attorney for each type of power. If you do this, consider their relationship and whether they would work well together.
If you do not have any suitable close relatives or friends who you could trust to act on your behalf, your options are limited because Power of Attorney is about putting your trust in someone who knows you well. You could choose someone you know professionally, such as a solicitor or accountant, but they will charge a fee for acting on your behalf.
Most people use a solicitor to draw up a Power of Attorney. The solicitor has to state that you have the mental capacity to understand what you are doing by granting Power of Attorney. They may ask you to have a GP assessment in order to confirm this. Once the solicitor is satisfied that you are able to grant Power of Attorney, they will send the document to the Office of the Public Guardian to be registered. There is a fee for registering the document.
If you are a carer looking to set up PoA for your loved one, East Renfrewshire Carers Centre can help
As an Attorney, you have a duty to carry out the person's instructions, and make decisions in accordance with their wishes. If you feel that there are instructions you could not follow, due to religious beliefs for example, you should not accept the position of attorney. As an attorney, it is important to feel that you know the granter's wishes well, so it can be useful to talk to them about this regularly. Ask them to let you know if their wishes and priorities change. Being an attorney can be time consuming and stressful. If you have continuing (financial) powers, you may have to deal with unfamiliar issues, such as shares, pensions, tax and property. If you have welfare powers, you may need to make decisions about medical treatment or care homes. It is a good idea to find out in advance where you can get advice about these issues if you need it.
There are certain responsibilities you have, and standards you must meet, when you start acting as an attorney:
- only making decisions you have been granted the power to make
- not taking advantage of the position of trust you are in, or putting yourself in a position where your own interests conflict with your attorney responsibilities
- carrying out the granter's instructions
- using a reasonable standard of care and skill
- respecting the granter's confidentiality
- keeping records of decisions made, including evidence of how money has been spent, and who else was involved in the decision-making process
- following the principles of The Adults with Incapacity (Scotland) Act 2000 and complying with any directions from the Sheriff Court
A Continuing (financial) Power of Attorney can either be used straight away, or only if the granter loses capacity. The person granting Power of Attorney chooses which option they want. A Welfare Power of Attorney can only be used if the granter loses capacity. A Power of Attorney that can only be used once mental capacity is lost must include a statement saying that the granter has considered how their incapacity is to be determined - how this should be assessed, and who should do this, for example by a qualified medical practitioner.
There is also a cost of to register your PoA with the Office of the Public Guardian (OPG). At the time of publication, this is around £100, but costs can change, so please check with the OPG for the most up to date information either via their website or by calling 01324 678 300 (open Monday-Friday, 9am - 5pm).
