Power of attorney solicitors
Everyone should have a power of attorney, irrespective of age, simply because no one knows when they may need to rely upon it for managing legal authority over their financial affairs.
Overview
Power of Attorney in Scotland
Many people assume that family members or their next-of-kin will be able to step in and help if they can no longer make decisions on their own. However, simply being a relation is not sufficient to allow someone to manage a loved one’s financial affairs.
A Power of Attorney allows you to appoint someone you trust, possibly a family member or friend, to act on your behalf if you become unable to manage your own affairs. For family members and friends, being granted power of attorney allows them to deal with banks, lawyers, care homes, and the government on your behalf. Without a Power of Attorney being in place, making legal and welfare decisions can be a difficult, expensive, not to mention stressful, process.
The drafting of a good Power of Attorney document is complicated as this legal document is open to interpretation so using an experienced solicitor is important.
Guardianship orders
If someone has already lost capacity without a Power of Attorney being in place a Guardianship order is necessary. In these circumstances, a court will decide on the most appropriate person to be appointed as Guardian to act in the best interests of the adult with incapacity.
A Guardianship order authorises someone to act and make decisions on behalf of an adult with incapacity on a long term on-going basis. The court also decides how long a Guardianship order can last. On average these tend to be for three years and can be renewed.
We can help you decide whether a Guardianship order is the best course of action and, where it is, to prepare for the court action.
Key contacts
THE TEAM
FAQS
Common questions about power of attorney in Scotland
Why do I need a Power of Attorney?
What are the different types of Power of Attorney?
Is a Power of Attorney not just for older people?
What happens if I don’t have a Power of Attorney?
Who should I appoint as my Attorney?
Will I be giving up my independence?
Can I cancel a Power of Attorney?
How long does it take to grant a Power of Attorney?
Why do I need a Power of Attorney?
Answer
If you were to become incapacitated for any reason, such as through an accident or illness, or you are out of the country for an extended period of time, it would allow someone you have authorised to act on your behalf in financial or welfare matters, or both.
Some common reasons to grant a Power of Attorney include:
- Disability – something which may affect your health and restrict your ability to make decisions in the future, either temporarily or indefinitely
- Suffering from a cognitive ability illness – such as dementia, including Alzheimer’s, Parkinson’s, depression or schizophrenia
- Travelling – if you are planning a long trip abroad and want reassurance that your assets can be looked after while you’re away
Like your Will, Powers of Attorney should be reviewed on a regular basis, to take account of any changes in your health or personal circumstances (for instance, your children have grown up, you have remarried or have a new partner).
What are the different types of Power of Attorney?
Answer
1. Continuing (Financial) Power of Attorney – for managing bank accounts and other financial matters
2. Welfare Power of Attorney – for making medical and welfare decisions
3. Combined Power of Attorney – a combination of both the above
The drafting of a good Power of Attorney document is complicated as the legal document is open to interpretation so using an experienced solicitor is important. At Harper Macleod, we have over 25 years’ experience working with clients on creating and enforcing Power of Attorney rights.
We will work with you to create the most appropriate Power of Attorney document for your circumstances. Once you have a signed Power of Attorney document it must be registered with the Office of the Public Guardian (Scotland). The Power of Attorney remains in force until it is revoked or until death.
Is a Power of Attorney not just for older people?
Answer
Accident and illness does not discriminate and can happen to anyone, at any time and at any age. If you are ill or in an accident, no one will automatically have the power to speak up or act for you if you do not have a Power of Attorney. This applies even to your spouse and other family members and can cause stress and problems when dealing with doctors, banks and other financial institutions.
What happens if I don’t have a Power of Attorney?
Answer
If you do not have a Power of Attorney and lose capacity, it could result in a timely and costly court action to appoint a Guardian. The choice of who looks after you and your affairs will be taken out of your hands and determined by the Court. In some circumstances, a Guardianship Order can cost up to 10 times the cost of a Power of Attorney.
Who should I appoint as my Attorney?
Answer
You can appoint any number of people to be your Attorney. You can appoint a spouse, a family member, a friend, your solicitor, or anyone else you trust. It can be a combination of people. It is a good idea to have more than one Attorney, or at least have a substitute in case your first named Attorney cannot act for any reason. The important issue is that YOU choose them, unlike a Guardianship Order where the Court chooses who should look after your affairs. They may choose someone you would not want to act for you.
Will I be giving up my independence?
Answer
No. The Welfare Power of Attorney only comes into effect in the event that you lose the mental capacity to make decisions for yourself, and the Continuing (financial) Power of Attorney can only be used either on your authority or if you have lost capacity and cannot act on your own behalf.
Can I cancel a Power of Attorney?
Answer
A Power of Attorney can be changed or revoked at any time as long as you still have capacity.
How long does it take to grant a Power of Attorney?
Answer
A Power of Attorney can be drafted and be ready for use in a matter of days, as opposed to a Guardianship Order which can take up to a year to go through the court process. A Power of Attorney is also a fraction of the cost of appointing a Guardian.
Pamela Niven advises on wills and tax matters. Niven is head of private client asset protection and tax at Harper Macleod and is experienced in tax and succession planning matters. “Pamela is absolutely fantastic. She is thorough, commercial and very client-focused.” “Pamela is very good. She is very thorough, collaborative and technical. She is able to come to each matter with a solution- and client-first approach. I would recommend her without any hesitation.”
“We have used Pamela Niven for some years now, and have always found her to be most understanding, sympathetic and supportive. Thank you.”
Lindsay MacEwen is a senior associate within the firm’s private client practice. MacEwen has expertise in all aspects of private client law, with a particular focus on trusts and landed estates. “Lindsay is very technically able, competent and always willing to go the extra mile for her clients.” “Lindsay is easy to deal with and has very sound knowledge that I trust implicitly.” “She is highly professional and very knowledgeable. She is exceptional.”
“The support provided to us has been exceptional. It has been central to our decision making and allowed us to visit issues that we wouldn’t otherwise have considered.”
“The team at Harper Macleod has a great depth in knowledge when it comes to private client matters.”
“Exceptional service. Prompt, clear, trusted and very helpful. The whole process was so easy.”
“They provided excellent advice and professionalism. The team has a timeous and professional attitude with a strong focus on client service and satisfaction.”
“As arranging a POA is a very personal and emotional task, I can say without a doubt you made it easy.”
“We have been kept well advised on the process and options throughout the executory process. From what we have experienced, the support has been excellent.”
CONTACT US
Call us for free on 0330 159 5555 or complete our online form below to submit your enquiry or arrange a call back.