Powers of Attorney

What is a Power of Attorney?
A Power of Attorney is a legal document signed by you authorising someone else to act on your behalf.

When would I use a Power of Attorney?
Powers of Attorney are used in many different circumstances. For example, you might consider granting a Power of Attorney if you spend a lot of time abroad.  The most common use of a Power of Attorney is for elderly or ill people who wish to appoint someone else to manage their affairs.  As a Power of Attorney can only be granted if you have sufficient mental capacity, it is important to prepare it when you are fit and able.

Who should be my Attorney?
It is important that you have complete trust in your Attorney. Often the most appropriate person will be your husband, wife or partner or one of your children. Alternatively you may wish to appoint a close friend or a Solicitor from our Firm if for any reason it is not appropriate to appoint a member of your family.  At Macleod & MacCallum we will advise you on who would be the most appropriate Attorney in your circumstances.

Are there different types of Power of Attorney?
Following the Adults with Incapacity (Scotland) Act 2000 ("the Act"), there are now three different types of Powers of Attorney. The first type is a straightforward Power of Attorney which you might use for example if you are going to be abroad for a while. However this is not appropriate if you wish it to be used in old age as the Power of Attorney will cease if you subsequently lose capacity. In these circumstances Continuing or Welfare Powers of Attorney should be used. A Continuing Power of Attorney deals with property and financial matters. A Welfare Power of Attorney deals with more practical matters such as medical treatment, care and accommodation.  Both Continuing and Welfare Powers of Attorney will continue to have effect even if you subsequently lose capacity. Under the Act a doctor or Solicitor must sign a certificate stating that they have interviewed you and they are satisfied that you have capacity. The Power of Attorney must also be registered with the Public Guardian to have effect.

Are there any alternatives to Powers of Attorney?
A Power of Attorney is the best way to ensure that your affairs are properly taken care of in the event of old age or ill health. If you have not granted a Power of Attorney and subsequently lose capacity, for example, due to illness, then there are other options under the Act. The most common option is to apply to the Sheriff Court for the appointment of a Guardian.  This can be a costly and lengthy procedure and should only be used if a Power of Attorney is not possible. There are also a number of other possibilities available under the Act, including intervention orders and applications to access funds.  

At Macleod & MacCallum we are able to advise you on what suits your own and your family's circumstances best.

Contact: muriel.macleod@macandmac.co.uk