Alison Hempsey is a Partner within T C Young’s Private Client team and has a particular interest in Adult Incapacity matters. Her work in this area includes applying for Financial & Welfare Guardianship and Intervention Orders and preparing Powers of Attorney, as well as providing general advice to families and carers of adults with incapacity, including set up of family trusts. She also acts as Financial Guardian for a number of adults and has acted as Safeguarder for Adult Incapacity matters. She is a member of the Law Society of Scotland’s Mental Health and Disability sub-committee.

Q: Looking for further information on how to get started registering Power of Attorney?
– Julie

A:

Julie, if you have already signed a Power of Attorney and simply wish this to be registered with the Office of the Public Guardian, further information on the process can be found via the Office of the Public Guardian’s website.

If you have still to sign a Power of Attorney, you should think about who you would wish to appoint as your attorney, what powers you would wish your attorney to have and when you would wish the Power of Attorney to come into effect. Your solicitor will be able to help with this and you should contact them to arrange an appointment to take this forward.

Q: Do you need to visit a doctor first or can you arrange POA without seeing a doctor?
– Catherine

A:

Catherine, there is no necessity to visit your doctor first. However, there is a certificate to the Power of Attorney which requires to be signed by either a solicitor or medical practitioner, confirming that they met you at the time you signed the deed and that they are satisfied that you understand the nature and extent of the powers you are granting, that no one is placing undue pressure on you to sign the deed and that there is no other factor impacting on your ability to grant the Power of Attorney. If a solicitor is assisting you in the preparation of your Power of Attorney, they should normally be able to sign this certificate at no additional cost. If your doctor is signing the certificate, they may charge a fee for doing so.

Q: What are power of attorney job or duties?
– Yvon

A:

The role of an attorney is to act for the benefit of the person who granted the Power of Attorney (the granter) and to act in accordance with the powers granted to you. This may involve assisting the granter with his or her finances, e.g. paying bills, withdrawing or paying money into bank accounts, or more significant decisions such as selling the granter’s home and/or purchasing alternative accommodation. If the attorney also has welfare powers, they may require to assist the granter with making decisions about how they are cared for, where they live and whether they receive medical treatment or not. At all times, attorneys must act in accordance with the principles of the Adults with Incapacity (Scotland) Act 2000, i.e. they must act for the benefit of the granter, any intervention must be the least restrictive option to achieve the benefit for the granter, they must take account of the granter’s past and present wishes, they must take account of the views of the Adult’s nearest relative, primary carer or anyone else having an interest in the Adult’s affairs, and they must encourage the granter to continue to use existing skills and to develop new skills where appropriate. Further information on the role of an attorney can be found via the Code of Practice for Continuing and Welfare Attorneys.

Q: How does drafting your own PoA work and where do you acquire these documents?
– Ina

A:

It is possible to draft your own Power of Attorney, and there are some templates available online and through packs available from stationers. However, beware of inadvertently using English style documents (the form of Power of Attorney deeds in England & Wales is very different to that in Scotland)! Always remember that a Power of Attorney is an important legal document and it is therefore essential that it is completed properly. It is worthwhile taking professional advice at the time of drafting the Power of Attorney document to ensure that the document is completed property, accurately reflects your circumstances and to avoid any nasty surprises at a later date.

Q: Why is it so expensive to have this done, surely if you have a Will it should be in that document?
– Hazel

A:

Your Will only comes into effect on your death, whereas a Power of Attorney allows someone else to make decisions on your behalf during your lifetime in the event you lose capacity to do so for yourself. The Power of Attorney comes to an end on your death and at that stage, your Will would come into effect. A Will and a Power of Attorney are two separate legal documents, but both are very important. No one can make any decisions on your behalf unless they have legal authority to do so, not even your next of kin. A Power of Attorney can be used to appoint someone you trust to make such decisions and to avoid your family having to go through a lengthy court process in order to obtain such authority.

Q: Is legal aid available for this?
– Michelle

A:

Yes, depending on your financial circumstances, you may be entitled to Advice & Assistance from the Scottish Legal Aid Board to cover the cost of completing a Power of Attorney. You can check your eligibility using the Legal Aid Board’s online calculator.

Q: Just be aware it dies when the person dies.
– Allison

A:

Allison you are correct. The Power of Attorney is only effective during your lifetime and comes to an end on death. It would then be the responsibility of the Executor or Executors appointed in your Will to deal with winding up and distributing your estate. If you don’t have a Will, you should give some thought to putting this in place – without it, an additional court process to have an Executor appointed may be necessary and crucially, your estate may not pass to the people you want to benefit. You should contact your solicitor to discuss further.