Granting a Power of Attorney
This fact sheet is about granting a Power of Attorney to a person who can decide or act for you when you are or will no longer be able to do that for yourself. We give you advice on how to avoid or resolve problems when you're thinking about granting Power of Attorney. This fact sheet is intended to help you understand the legal background of our advice. It also contains suggestions for practical steps you can take to save time and money. Granting a Power of Attorney ensures that a trusted person or persons of your choice are legally allowed to take over the management of your affairs at a time when you are unable to act or make decisions yourself. The decisions could relate to financial or welfare matters, or both. You might be unable to act yourself because of an absence abroad, or for reason of physical incapacity. A Power of Attorney can also be crucial for an adult who is unable to make decisions for him or herself because of mental incapacity and if this is to be covered, there are some additional legal requirements for the document which appoints the Attorney. Figures estimate that at any one time some 100,000 adults in Scotland have a significant impairment to their legal capacity to make decisions and a Power of Attorney will help them and their family and friends or carers in such a situation.
What is a Power of Attorney? A Power of Attorney is a written document where the "granter" appoints one or more people to act as their Attorney, in the event that they cannot act for themselves. The Attorney is given specific powers which can relate to financial matters or welfare matters, or both.
When should I prepare a Power of Attorney? Very often, friends and family will become concerned about a person's ability to manage their financial or welfare affairs and will consult a solicitor to prepare a Power of Attorney for them. It can often be too late for this person to grant the Power of Attorney because the granter must understand the nature and extent of the deed at the time of granting. To avoid this, we advise clients to prepare a Power of Attorney earlier and at a time when they are likely to consider issues of "legal capacity" to be irrelevant for them. Our clients then have the reassurance that the document is a safeguard for their future which will not be used until it is required. It is possible to stipulate that the Power of Attorney should not be activated unless a doctor certifies that capacity to make decisions has been lost.
Different types of Attorney: If financial powers are given, the Attorney can be authorised to act before or after capacity is lost. If the Attorney has authority to act after capacity has been lost, the Attorney is known as a "Continuing Attorney". If welfare powers are given, the Attorney can only act after capacity has been lost. The Attorney is called a "Welfare Attorney" and is typically given powers to make decisions about such matters as accommodation and care provision for the granter.
Who can act as an Attorney? You can choose who you would like to act on your behalf. A Welfare Attorney has to be an individual. A Continuing Attorney can also be an individual but it could also be a body such as Morton Fraser Trustees Limited. The granter should be confident that their Attorney is someone who will be aware of their wishes and how they would like them to act on their behalf.
Can the same person be appointed as Continuing and Welfare Attorney? Yes, the same person can be appointed as Continuing and Welfare Attorney. However, you may prefer that welfare matters are looked after by a family member or a friend, rather than a person with whom you have a professional relationship.
What are the legal requirements for a Continuing or Welfare Power of Attorney? A Power of Attorney is a written document which is signed by the granter. It must state that the Attorney's powers will continue, even if the granter has lost capacity to deal with the matters covered by the powers in the document. A solicitor, medical practitioner, or advocate must speak with the granter before they sign and then certify that the granter (1) understands the nature and extent of the deed and (2) they were not unduly influenced before they signed the deed. The document must then be registered with the Public Guardian (an officer of the Court) before it can be used.
Safeguards: Understandably, the granter of a Power of Attorney will want to be sure that their Attorney always acts in their best interests, particularly if they no longer have capacity. There is legislation which protects the granter and an officer of the Court, the Public Guardian, oversees the operation of all Continuing and Welfare Attorneys. All Attorneys must act in accordance with the general principles of The Adults with Incapacity (Scotland) Act 2000. For example, all interventions must be of benefit to the adult and the Attorney should not intervene unless it is the minimum intervention necessary to benefit the adult. The Public Guardian has powers to investigate any complaints or circumstances regarding the operation of any Continuing or Welfare powers.
What if an adult does not have capacity to grant a Power of Attorney? If a Power of Attorney cannot be signed because the granter does not understand the nature and extent of the document, other procedures are available under the Adults with Incapacity (Scotland) Act 2000. The procedures are designed to ensure that an adult will always be fully protected in connection with their financial and welfare affairs. However, they are more costly and time consuming than the use of a Power of Attorney.
Why Morton Fraser? The members of Morton Fraser's private client team have in-depth knowledge of the terms of the legislation and experience in the drafting and ongoing management of Powers of Attorney for a wide range of circumstances. For further information please contact Sue Hunter on 0131 247 1054 or at sue.hunter@morton-fraser.com.