Setting up a Power of Attorney allows you to decide who will act if you lose capacity. It is legal authority given by you to a trusted individual so they can make decisions on your behalf.
A Continuing PoA relates to financial or property matters, such as dealing with bank accounts, signing documentation required in house transactions, mortgages etc. This can be granted to take effect at any time after you register the POA, or continuing in the event that you become incapable of handling matters yourself.
A Welfare PoA relates to making decisions about your welfare or medical matters where you’re no longer able to do it yourself. This could be through incapacity or if you become unable to communicate.
This offers both continuing and welfare powers, giving greater flexibility. The majority of people choose this, however it’s entirely up to you which type of Power of Attorney you’d like to grant.
Without a Power of Attorney, an application must be made to the Court to have someone act on your behalf – this is called a Guardianship order.
If you lose capacity with no Power of Attorney in place, the Court will have the ultimate decision in who is appointed as your Guardian. This may not be the person you would choose.
Like a Power of Attorney, there are three main types of Guardianship: Welfare, Financial, and Combined.
Guardianship Orders are granted through the Sheriff Court and tailored to be necessary and proportionate to the individual person’s needs and condition.
Discuss your requirements confidentially with professionals
Plan ahead and protect against the risk of an uncertain future
Ensure your medical and financial needs are taken care of
You decide when the Power of Attorney comes into effect
If you’re considering putting a Power of Attorney in place, or just want to know more about the process, contact one of our solicitors in confidence today.
Yes, it can be changed or revoked at any time as long as you have capacity. You choose your Attorney(s) while you still have capacity. This legally allows your loved ones to act on your behalf.
It can be put in place any time while you have the mental capacity to give instructions.
A Financial Power of Attorney can be used any time of your choosing after the forms have been legally registered with the Office of the Public Guardian (OPG).
A Welfare Power of Attorney only takes effect if you lose capacity, or you lose the ability to communicate.
Essentially, you keep control for as long as you’re able to. The process is cheaper, easier and overall less hassle than having to go via the Court for Guardianship.
Like a Will, the drafting of a PoA document is important. It’s crucial to ensure that it’s not left open to interpretation, since you don’t want any disputes further down the line.
The certificate of capacity always has to be signed by a solicitor or doctor, to confirm capacity at the time of signing.
For that reason, we would always recommend getting in touch with a professional to ensure your peace of mind.
No. If you have Power of Attorney for someone who has passed away, your responsibility ends after they have died.
This means you can’t take any further legal action on their behalf. The responsibility for managing their estate will instead pass to the Executor of the estate.
Yes, you would still need a Power of Attorney because the law requires you both to have capacity.
So if your spouse loses capacity or becomes unable to communicate, you couldn’t legally make decisions on their behalf such as selling a jointly-owned property without being their registered Attorney.
Without a Power of Attorney, an application must be made to the Court to have someone act on your behalf. This is called a Guardianship order. The Court will appoint someone to make decisions on your behalf. Depending on the circumstances, this may not be the person that you wanted to be in charge of your affairs as the Court has the ultimate decision. This means decisions could be made by doctors & social workers involved in your care, and access to your finances could be delayed – leaving bills unpaid and more.
A Guardianship order only takes place after you have lost capacity. Then, it takes effect after the Court has chosen a Guardian and the Office of the Public Guardian (OPG) has issued a certificate. The OPG supervises Financial Guardianships, while the Mental Welfare Commission oversees Welfare Guardianships.
All control is transferred to the Court appointed Guardian – but they must take the person’s wishes and feelings into account. Legal Aid is available for some of the work for Guardianships with a Welfare element, but there are also private fees. These are paid by the person under the Order, and granted by the Sheriff.
Legally, you can only set up a Power of Attorney whilst you still have capacity and are able to communicate.
Get in touch sooner rather than later – as it will give you that peace of mind knowing that someone you trust is in charge of your affairs.