Blog: Power of Attorney – A Power of Good
Tessa Till is a private client partner at Pagan Osborne’s Edinburgh office.
Disturbing new statistics show that more than 8 out of 10 Scots risk leaving major life decisions to total strangers should they become incapacitated.
Yet almost 90 per cent of us say we would prefer to have our affairs looked after by those closest to us.
According to the research for Solicitors For the Elderly (SFE), an organisation of lawyers providing specialist legal advice for older or vulnerable people, 84 per cent of people north of the border have no type of Power of Attorney in place – a situation that could leave family or friends faced with going to court for permission to make decisions for loved ones who are no longer able to do so themselves.
And this is despite the number of Powers of Attorney (PoA) being granted in Scotland rising by 18 per cent this year.
While it’s good to know that increasing numbers of people are taking such steps, they are still in the minority – a tiny 8 per cent – and many, many more could benefit from having the legal documentation drawn up to enable families to protect their loved ones and make the administration of life simpler, be it in their later years, following an accident or illness – or even while they are away travelling or working offshore.
PoAs have so many practical uses for families in any number of situations and we advise people at any lifestage to consider a PoA. Allowing a family member or friend you trust, or even an advisor, to manage your affairs can help make the administration of life simpler as we all live increasingly busy lives.
PoAs come in two forms: a Continuing PoA and a Welfare PoA. A Continuing PoA deals with your financial affairs and gives your attorney the power to make wide decisions for you ranging from selling your house to paying your bills. A Welfare PoA allows your attorney to make welfare decisions for you such as where you live, what care you get, diet, medical treatment etc. The Continuing PoA can be used while you still have capacity and “continues” once you have lost capacity, but the Welfare PoA can only be used once you have lost capacity. You can choose as many attorneys as you like as well as being able to appointment substitute attorneys. Your attorneys can be different for the Continuing and Welfare Powers.
It is also an important tool to have in place as you grow older. You do not give up your rights by having a PoA – you are simply allowing someone else to also act on your behalf. If you end up being afflicted by declining physical or mental health, they become invaluable. Without them families may have to consider Guardianships which can be time-consuming, costly and stressful to have awarded by the courts.
If someone loses capacity and has not granted a PoA, then Guardianship is usually the next route. This is an order from the court which gives someone (not always a relative) formal authority to make financial and/or welfare decisions for the adult. As this is a court process requiring legal advice and representation, this can be very expensive meaning fees into the thousands of pounds and a legal process which can take 6-9 months.
At the end of the day, it pays to think ahead and to be prepared in advance. Should the worst happen then you have the reassurance that the major decisions can be taken care of by those who love and know you best.