What is Power of Attorney?
A power of attorney is a legally binding document that allows you to decide what you want to happen to your possessions and care if you can no longer look after your own affairs.
Drawn up when you have the capacity to do so, power of attorney gives another person (known as the attorney) legal permission to manage certain aspects of your affairs. It can include your finances and property or personal welfare.
Under certain circumstances, you can choose whether you want your power of attorney to come into effect immediately or at the time when you lose capability. As power of attorney allows another to act on your behalf, it’s essential to have a solicitor oversee the process and ensure you’re making the decision of your own accord and not under the influence of someone else.
Types of Power of Attorney
There are two categories of power of attorney:
- Power of attorney for your financial/property affairs – this is known as ‘continuing power of attorney’ and can take immediate effect, continuing once you become incapable.
- Power of attorney for your welfare – this appoints another person to make decisions about your welfare on your behalf and cannot be exercised until you have lost the capacity to care for yourself.
A power of attorney must be certified by a solicitor or medical professional, who will interview you before signing the document. Once signed, your power of attorney must be registered with the Office of the Public Guardian to take effect.
Who Can I Choose As My Power of Attorney?
Anyone over the age of 16 can legally be your power of attorney. You can choose a family member, partner, spouse, friend, accountant, solicitor, or a combination. It’s recommended that you have more than one power of attorney to ensure someone can handle your affairs should one of your attorneys become incapacitated.
You can appoint someone to handle your finances and a different individual to handle your welfare – you’re entirely in control. However, it’s crucial that whoever you’ve chosen to be your attorney is a fully consenting adult who understands the responsibility involved.
How to Set Up Power of Attorney
To set up power of attorney, you’ll need a solicitor to oversee the process and help you draft your document. You or your solicitor can write the paper stating who you wish to act on your behalf.
The Scottish Government website has a wealth of information on how to write your power of attorney and what to include in the document. Read Chapter 2, ‘Creating a Power of Attorney’, in the code of practice for continuing and welfare attorneys for a definitive list of the types of ‘powers’ you may want to include and other key points to consider. The Office of The Public Guardian is also a great resource, covering some basic power of attorney FAQs.
Once signed, a power of attorney is registered with the Office of the Public Guardian in Scotland. This will be sent along with a registration form the attorney must sign to confirm they’re willing to act on your behalf. Bare in mind that there’s a fee to register a power of attorney.
When your attorney needs to act on your behalf, they must present certified copies of the power of attorney to your bank and any other organisations they are dealing with to prove they’re legally authorised to act on your behalf.
When Should I Set Up My Power of Attorney?
As soon as possible. It can be much more complex and expensive to help manage your money, property and welfare if you’ve already lost mental capacity. Moreover, it takes several weeks to set the documentation up and have it registered, so if possible, it’s important to arrange this well in advance.
Trust Beveridge, Philp & Ross, Expert Solicitors with Over 50 Years’ Experience
Ready to draw up your power of attorney? Contact our specialist solicitors today to get started. Our professional team can help guide you through the process, offer advice and ensure your property is cared for if you can no longer manage your affairs.
Get in touch today through our contact form, call us on 0131 554 6244 or email: mail@bprsolicitors.co.uk.