A Power of Attorney is a way of giving someone else authority to make decisions about your finances, assets, health and welfare.
A Power of Attorney (POA) can be made effective right away, or it can specify that it cannot come into effect unless the person granting it becomes incapable of managing their own affairs.
An attorney should always be someone you trust, such as a family member or friend, or a solicitor.
If you have only one attorney named and he or she is no longer able to act on your behalf then a new POA must be drawn up. As a result, we recommend that you appoint at least two attorneys or one attorney with a substitute attorney.
There are three types of POA – continuing POA, welfare POA and a combination of the two. You can appoint different attorneys for each.
A continuing POA will look after financial matters, including decisions about money and property. This individual could, for example, manage your bank accounts, savings, investments and other financial assets, buy and sell property, and claim and spend welfare benefits on your behalf.
A welfare POA would be appointed to make decisions about your personal welfare, but cannot do so until you are no longer able to do this yourself. This individual might make decisions relating to where you live, day-to-day personal care and medical treatment.
A combined POA will handle all financial, property and welfare matters.
It is never too early to discuss POA with a solicitor. Some people’s capacity to manage their own affairs becomes gradually impaired with age, but accidents and illness can strike suddenly.
If you are close to someone who is finding it difficult to make decisions for themselves and manage their affairs, wants to put their affairs in order for when they need assistance, or is taking decisions that are against their best interests such as overspending or making unnecessary purchases, then it may be time to discuss POA with them.
Without a POA nobody has the legal right to act on your behalf, meaning loved ones may have to go to court to get permission to do so.
You should get legal advice if you want to create a POA as the wording is crucial and the powers granted must reflect your requirements.
We would always advise against using the pre-printed forms available from shops or the internet. If you see the terms ‘enduring power of attorney’, ‘lasting power of attorney’ or ‘donor’ on a form, it has not been drafted with Scots law in mind.