Planning for the future

You make decisions every day about your life and your future: small decisions such as what meals to eat or how to dress and bigger decisions about things like money, your family, and your home. You make judgements about what is right for you.

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.

Accidents or illness can occar at any age and at any time. If you don't set up a Power of Attorney and you lose the ability to make decisions for yourself, the person who makes decisions on your behalf may not be the person you would have chosen.

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.

The different types of Power of Attorney are:

1. 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.
2. 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.
3. 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.

Mental capacity is the ability to make decisions for yourself and act on them and remember them. Some people may have had limited capacity all their lives. Others may have a reduced capacity caused by a progressive illness such as dementia, or may suddenly lose capacity after a stroke or an accident.

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.

Nobody has automatic authority to make decisions about your life if you lose capacity, unless there is a Power of Attorney set up in advance. If you have not appointed an Attorney, another person would, in most cases, have to go to Court to get the authority to act on your behalf.

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.

Your attorney could be a partner, relative or friend. They must be over 16 years old, willing to take on the role and cannot be bankrupt. You need to be confident that they will act in your best interests and that they have the skills to carry out the tasks involved. You should never feel pressured into choosing someone you don't want.

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.

You can use a solicitor to help set up your Power of Attorney or you can write it yourself. The Power of Attorney must be registered with the Office of the Public Guardian before it can be used. You should think about whether you want your attorney to be able to act for you immediately (continuing powers only) or only if you lose capacity.

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

Becoming an Attorney is a big responsibility. It is hard to predict the types of decision you may have to make on somebody else's behalf and you need to feel completely comfortable with taking on this role.

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

When the Power of Attorney has been registered with the Office of the Public Guardian, they will send you a registered copy of the document. If you need to act as attorney, you will have to show or send the Power of Attorney document to relevant organisations such as banks, medical professionals, solicitors and care professionals, together with proof of your identity.

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 a financial cost attached to a PoA drawn up by a solicitor, and this will vary depending on the solicitor you use. It is worth considering if you need to make or change your Will, as circumstances can change, you may ask your solicitor to draw up your Power of Attorney at the same time.

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).

You can find more information at

• https://mypowerofattorney.org.uk/
• Age UK guide