Powers of Attorney
A power of attorney is simply a legal document by which you authorise someone else (an ‘attorney’) to make decisions on your behalf. This can be very useful if you need documents signing at a time when you are abroad, for example in connection with a sale or purchase of a house. However, the most common use of a power of attorney is to appoint someone to manage your affairs in the event that, in the future, you become incapable of doing so personally (eg due to sudden illness, accident, or simply old age).
It is unwise to put off making a power of attorney as it is only possible to legally sign such a document whilst you have the mental capacity to do so. If left too late, the only alternative may be for someone (possibly not someone you would have chosen) to apply to the Court for a Financial and/or Welfare Guardianship Order. These Orders involve the completion of lengthy and complex forms, the payment of fees (often in excess of £1,500), and it may take 6 months or more for the Court to issue the Order. It is for these reasons that a power of attorney is much preferred, being simpler, quicker and cheaper as well as allowing you to decide who will deal with your affairs.
Under the Adults with Incapacity (Scotland) Act 2000 it is possible to make a combined ‘Continuing and Welfare Power of Attorney’. These are very flexible and may authorise your attorney to handle matters ranging from your financial affairs to other practical issues such as medical treatment, care and choice of accommodation.
It is because of the extremely broad and therefore useful powers conferred under a Continuing and Welfare Power of Attorney that certain precautions are necessary. Firstly, you should ensure that you appoint as your attorney only someone in whom you have full confidence, for example your spouse or adult child, and it is sometimes also possible to appoint a solicitor as one of the attorneys. Secondly, it is necessary for a Certificate, signed by a doctor or solicitor, to be attached to the power of attorney confirming that they are satisfied that you had full capacity when you signed it, and to have legal effect the power must then be registered with the Court.
We have the necessary expertise to advise on making a power of attorney, and indeed to advise prospective or already appointed attorneys regarding their powers and duties.
Contact Chris Wallace
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