Powers of Attorney – what are they and why should we have one.

Many of us presume that should we become incapable of managing our own affairs, either through loss of mental capacity or we become physically unable, that our spouse/civil partner or close family members will be able to act on our behalf.   This is simply not the case.

Unless there is a Power of Attorney in place no one has the authority to make decisions about your life and affairs should you lose the ability to do so yourself.

Spouses and partners may be able to manage joint accounts and their opinions may be considered in relation to your welfare but they do not have legal authority to make decisions on your behalf.

If you have sole accounts, with your bank, investments or even just simply with utility companies it is only you that can provide instructions unless a Power of Attorney in place.

Practically this can cause many problems in your day to day life.

A Power of Attorney, in simple terms, is a legal document that allows you to appoint someone to act on your behalf should you be unable to do so yourself.

In Scotland we have two types of Powers of Attorney a Continuing Power of Attorney and a Welfare Power of Attorney.  The Welfare Power of Attorney allows your Attorney to make decisions about your health and wellbeing.  Importantly though your Attorney can only make decision about your health and well-being once a doctor has certified you as being incapable of making those decisions yourself.

The Continuing Power of Attorney deals with your finances and general affairs.  It can be used even when you still have capacity as long as you give your Attorney permission to act on your behalf.

If you don’t have a Power of Attorney and become incapable of making decisions for yourself, someone will have to apply to the Court for a Guardianship Order.  This process generally takes a long time, costs a lot and can be an extremely stressful and emotional experience for everyone involved.

A Power of Attorney is like an insurance policy – you hope you will never need it but if you do, it will make your life and lives of your loved ones much easier than it would be otherwise.

If you wish to discuss Powers of Attorney in more detail, please contact the Private Client Team.

The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.