The practicalities and benefits of granting a Power of Attorney

The practicalities and benefits of granting a Power of Attorney

Powers of Attorney are an excellent safeguard to put in place in case you are unable to look after your affairs in the future.

Unfortunately, this can happen at any age so everybody (over the age of 16) should consider having a Power of Attorney as well as a Will.

There are often a number of misconceptions about Powers of Attorney so the following frequently asked questions aim to cover the most common queries that can arise.

More about Power of Attorney

What is a Power of Attorney?

A Power of Attorney is a document which you sign to formally nominate one or more individuals to act on your behalf if you become unable to make decisions for yourself in the future.


Why can’t my spouse just make decisions for me?

It is often wrongly assumed that your spouse or another relative could automatically access your funds or investments if something happened and you could no long deal with them yourself. However, that is not the case.

Where assets are held in your sole name, banks, building societies, investment managers and other financial organisations will not permit even a close relative to deal with anything unless there is a valid Power of Attorney in place explicitly detailing who has this authority. This can cause a significant amount of distress and administrative problems if funds cannot be accessed to meet mortgage payments and other household expenses or to pay school fees.


I have a Will - do I also need a Power of Attorney?

Powers of Attorney are used where a person is still alive but no longer has the mental capacity to make decisions about his or her own affairs. It is important to remember that a Power of Attorney is an entirely separate document to your Will.

A Power of Attorney deals with your affairs when you are still alive, and it lapses on your death. At that point in time, your Will will become operative to deal with your assets and their ultimate distribution to your chosen beneficiaries. There is no “overlap” between the two documents.


Do I need a Power of Attorney?

People tend to associate Powers of Attorney with older people as dementia is a common reason for someone having to step in and look after an individual’s assets. However, unfortunately, illness or accidents can affect much younger individuals, so it is important that people of all ages consider granting a Power of Attorney to ensure that someone is formally nominated in advance to act on behalf of that person.

This is especially relevant for those who are still working as either a sole trader or in a small business or partnership. If the person who has access to the business’ funds is involved in an accident, that could cause huge cash flow problems if nobody has the authorisation on behalf of that individual to make withdrawals to pay wages or settle invoices.


Does a solicitor need to prepare my Power of Attorney?

A solicitor does not need to prepare the Power of Attorney but, of course, he or she can ensure that it is drafted properly and represents your wishes. However, either a solicitor, practising Advocate or doctor must sign a certificate which forms part of the document (explained below in What safety checks are in place when granting a Power of Attorney?).

The Power of Attorney cannot be registered or used without it including the appropriate signed certificate (see below in What is the Office of the Public Guardian and what do they do?).


What kind of decisions can be made under a Power of Attorney?

Powers of Attorney in Scotland can cover financial or welfare matters. A financial Power of Attorney is known as a “Continuing Power of Attorney”. This is because it “continues” to be effective even when the person who has granted it subsequently loses the ability to deal with his or her financial affairs.

A “Welfare Power of Attorney” (as the names suggests) allows the appointed Attorney to make decisions of a more personal nature. These include selecting suitable accommodation for the granter and making decisions about diet, appearance, holidays and medical and dental treatment.

If you are happy for the same individual(s) to make decisions about your financial and welfare affairs, both types of power can be amalgamated into one document. This is known as a “Continuing and Welfare Power of Attorney” or a “Combined Power of Attorney”.


Do I need a solicitor to act as my Attorney or can I choose somebody else?

There is no requirement to have a solicitor named as your Attorney. Ultimately, you should select someone that you would trust to make decisions about your financial and/or welfare matters if you could no longer make such decisions for yourself.

If you appoint only one person, it is sensible to name a substitute Attorney who would act if the original Attorney cannot take on the role at the relevant time for whatever reason.


Are there any limitations on who can act as an Attorney?

Anybody can act as an Attorney if he or she is over the age of 16 but an undischarged bankrupt cannot act as a Continuing Attorney in respect of making financial decisions. The proposed Attorney must sign a form to confirm that he or she is happy to be appointed.

A substitute Attorney only has to formally confirm his or her willingness to act if and when the situation arises where he or she needs to take on the role of principal Attorney. However, it is good practice to ensure that your substitute Attorney is happy to act, if required, before you name him or her in your Power of Attorney.


Can I appoint more than one person to act as my Attorney?

You can appoint more than one person to act as your Attorney. Where there are multiple Attorneys, you can specify exactly how they should make decisions about your affairs (either financial or welfare or both) if they are called upon to act.

The default position is that the Attorneys will act jointly i.e. they all have to agree on a course of action before it can be followed. This has advantages in that it ensures that all appointed Attorneys are fully involved, and that the most dominant Attorney cannot just “take over”.

However, there can be logistical issues if one Attorney lives abroad (or is even just on holiday overseas) and a document needs to be signed by all Attorneys. If papers need to be circulated for signing and Attorneys do not live close to one another, this could delay proceedings which could ultimately have a detrimental effect on the granter.


Do my Attorneys have to act jointly or are there any alternatives?

It is also possible to state that the Attorneys can act independently of one another.

This has the advantage that decisions can be made more quickly but, conversely, while Attorneys are encouraged to consult and discuss matters amongst themselves before any action is taken, there is always the risk that one Attorney may go ahead and make a decision contrary to the one that his or her co-Attorney(s) might have made.

Otherwise, where an odd number of Attorneys has been appointed, the granter can state that a majority of the Attorneys must agree on a decision before any action is taken.


How can you let your Attorney know how you would like him or her to act?

It is important to discuss your wishes with your proposed Attorney(s) before granting a Power of Attorney so that he, she or they can take this guidance into account if the powers did ever need to be exercised in the future.

This can be done verbally or set down in a Letter of Wishes addressed to the Attorney(s) which will be stored with the Power of Attorney. The Letter of Wishes is not legal binding, but it can give the granter peace of mind that his or her objectives in terms of how the Power of Attorney should be operated have been clearly recorded on paper.


What safety checks are in place when granting a Power of Attorney?

Allowing someone to essentially “stand in your shoes” and make decisions on your behalf is a significant amount of power to bestow on anyone. This is why there are various safeguards in place as part of the process of granting a Power of Attorney.

Firstly, there are strict rules about the signing of the document. A Continuing Power of Attorney, Welfare Power of Attorney or Continuing and Welfare Power of Attorney needs to be signed in the presence of a solicitor, practising Advocate or doctor who has to:

a) firstly interview the granter about the Power of Attorney and

b) then countersign a certificate attached to the Power of Attorney to confirm that, in his or her professional opinion, the granter fully understands the nature and extent of the powers that are being granted in favour of the Attorney(s) and that he or she has sufficient mental capacity to put the Power of Attorney in place.

The professional person countersigning the certificate must also confirm that the granter is not subject to any “undue influence”.

This essentially means ascertaining that it is wholly the granter’s choice to:

a) grant a Power of Attorney and

b) specifically appoint the named Attorney(s) as opposed to the granter being pressurised or persuaded into following this course of action by the proposed Attorney(s), other family member or another third party.


What is the Office of the Public Guardian and what do they do?

After the Power of Attorney has been signed, it is registered with the Office of the Public Guardian (Scotland) (the “OPG”) which is based in Falkirk. This organisation maintains a database of all Continuing Powers of Attorney, Welfare Powers of Attorney and Continuing and Welfare Powers of Attorney that have been granted and successfully registered.


What happens if my Attorney is not acting properly?

As well as dealing with the registration of new Powers of Attorney, the OPG can also provide advice and guidance to Attorneys when they are carrying out their role.

The OPG does not actively supervise Attorneys who are acting under a Power of Attorney (i.e. there is no requirement for Attorneys to submit annual accounts for approval), but they do have extensive investigative powers in relation to financial matters.

If a person has concerns about how a Continuing Attorney was exercising his or her financial powers, he or she could contact the OPG who will investigate fully to ascertain if the granter’s financial or property assets are at risk and can take steps to stop any future harm.

The identity of the person who raised the initial concern will be kept confidential and will not be disclosed to the Attorney. Any concerns as to how a Welfare Attorney is acting should be raised with the relevant Local Authority or the Mental Health Commission.


When can my Attorney start to act?

In relation to Continuing Powers of Attorney (or the financial powers in Continuing and Welfare Powers of Attorney), the Attorney can start to exercise these as soon as the Power of Attorney has been registered by the OPG.

However, the Power of Attorney can state that the financial powers can only be used when:

a) the granter has given consent to the Continuing Attorney to start acting or

b) when the granter becomes “incapable” of making financial decisions.

Welfare Attorneys can only start to act when the granter becomes “incapable” of making welfare decisions (i.e. you cannot ask your Welfare Attorney to start to make welfare decisions on your behalf while you are still capable of making them yourself).


When am I deemed to be “incapable” of managing my own affairs?

The term “incapable” is defined in the Adults with Incapacity (2000) Act as being incapable of

  • Acting; or
  • Making decisions; or
  • Communicating decisions (where this is not a result of a physical disability which can be overcome with some human or mechanical assistance); or
  • Understanding decisions; or
  • Retaining the memory of decisions.

If your Continuing Attorney is only to start acting when you are deemed to be “incapable” then the Continuing Power of Attorney must confirm that the granter has considered how this will be determined.

For example, the document could state that the incapacity must be certified by the doctor treating the granter before the Attorney can begin to make financial decisions.

As welfare decisions can only be made by a Welfare Attorney when the granter has been declared incapacity, a Welfare Power of Attorney must always contain a statement of how the granter wishes his or her incapacity to be determined.


What happens if I want to change my Power of Attorney?

Changes can be made to a Continuing Power of Attorney, Welfare Power of Attorney and Continuing Power of Attorney after it has been registered. However, if the change is significant, it is sometimes easier just to revoke the existing Power of Attorney and put in place a new one.

The revocation notice (either a separate document or forming part of the new Power of Attorney) also requires a certificate signed by a solicitor, practising Advocate or doctor to confirm the capacity of the person revoking the Power of Attorney and that there is no undue influence being exerted over the granter.

The issues around countersigning such a certificate in respect of a Power of Attorney revocation are identical to those discussed more fully in What safety checks are in place when granting a Power of Attorney?


What happens if I do not have a Power of Attorney in place and I lose capacity?

As stated above, a Power of Attorney can only be put in place if a solicitor, practising advocate or doctor is satisfied that the granter has the appropriate capacity to put the Power of Attorney in place.

If he or she cannot certify the capacity of the granter (i.e. because the granter has dementia) the Power of Attorney cannot be completed and registered. Other options then have to be explored to look after the individual’s assets such as having someone appointed as a Guardian.

This involves the preparation of a court application, obtaining various medical reports and a sustainability assessment of the proposed Guardian. Overall, it can be a lengthy and costly process.

The OPG also takes a much more active role in supervising Guardians who must submit a full inventory of assets of the individual, a clear management plan and annual accounts for approval.

 


Is it expensive to do a Power of Attorney?

Our fees are competitive and will cover taking your instructions, drafting the Power of Attorney for approval, preparing the consent forms for signature by the Attorney(s), finalising the document, arranging for the execution of the Power of Attorney (by you) and the signing of the certificate (by us) and dealing with the registration of the signed Power of Attorney with the OPG.

We are happy to discuss costs with you in more detail once we have further information about your individual circumstances. Please note that the OPG charges a fee for registering each Power of Attorney (currently £79) which is an additional outlay to our fee for the legal work.


What kind of Power of Attorney do I need if I am going abroad?

If you are travelling overseas for a period of time, then you can prepare a simple “general” Power of Attorney appointing someone to make decisions on your behalf in your absence. Such Powers of Attorney usually include a specific date on which they will terminate if they have not been revoked in writing prior to that date.

Powers of Attorney of this type are not registered with the OPG. Crucially, the Attorney cannot continue to act under this kind of Power of Attorney if the granter subsequently loses capacity to make decisions for him or herself after granting the Power of Attorney.


What is a Lasting Power of Attorney?

This is an English Power of Attorney which can cover property and financial affairs or health and welfare affairs.

They are similar in some respects to the Scottish Continuing Powers of Attorney and Scottish Welfare Powers of Attorney (although not in appearance) and Lasting Powers of Attorney do not specifically require a solicitor, practising barrister or a doctor to sign the certificate confirming the granter’s capacity and understanding.

If you live in England, it would be appropriate for you to put in place an English Lasting Power of Attorney and you should consult an English qualified solicitor about this matter. Lasting Powers of Attorney are registered with the English Office of the Public Guardian which is based in Birmingham.

In summary, regardless of age, everyone should consider putting in place a Power of Attorney to ensure that a safeguard containing your specific instructions is in place should you ever become unable to look after your own affairs. Please contact us to find out more.


Who's Who

Roderick Urquhart

Senior Partner

He is a strong advocate of the advantages and benefits that a small, yet focused law firm can provide to its clients.

Contact: rmurquhart@urquharts.co.uk


Jim Baird

Partner

For over thirty years, Jim has advised families on a wide range of legal and financial matters, in particular wills, trusts and tax.

Contact: jimbaird@urquharts.co.uk


Sara Smith

Partner

Sara advises Private Clients on a variety of subjects including Wills, inheritance tax planning, Powers of Attorney, estate administration and the setting up of Trusts. Sara is also a qualified Solicitor in England and Wales.

Contact: sarasmith@urquharts.co.uk


Sharon Gordon

Associate

Sharon joined Urquharts as a trainee in 2011 and qualified as a solicitor in 2013.  As part of our Private Client team she advises on all aspects of Private Client law including Wills, Powers of Attorney and Executries, with a special interest in advising elderly clients and their families.

Contact: sharongordon@urquharts.co.uk


Do NOT follow this link or you will be banned from the site!