Setting up a power of attorney will make sure someone you trust will help make decisions for you when you are not able to do this yourself.
A power of attorney is a written, legal document giving someone else authority to take actions or make decisions on your behalf. You choose who you want to act as your attorney and what powers you want them to have.
A power of attorney is intended to ensure that your financial affairs and personal welfare can still be dealt with and protected in the event of you being unable to act on your own behalf.
Types of power of attorney
A power of attorney can cover both financial and welfare matters, or you can have separate deeds to cover these individually.
Financial powers
The financial powers can include making decisions about purchasing and selling heritable property such as your house, the power to operate your bank accounts, and to claim and receive all your pensions, benefits, allowances, etc.
Welfare powers
Welfare powers can include deciding where you should live, to have access to your personal information, and to consent or withhold consent to medical treatment.
There are many other financial and welfare powers which can be included or left out, depending on your circumstances and what you decide.
You can decide that you only want this to begin if you become incapable, and you can specify how you want your incapacity to be determined.
Why you might need a power of attorney
Having a power of attorney can give you peace of mind, as you know you will have the support of someone you trust if you are unable to make important decisions about the things that matter for yourself. Your attorney will have the information they need to make those decisions with confidence.
If you don’t set up a power of attorney and you lose the ability to make decisions for yourself, the person who makes decisions on your behalf may not be the person you would have chosen. Your next-of-kin, family or other people close to you do not automatically have the legal right to make decisions for you if you lose the ability to do so yourself.
When you might need a power of attorney
No-one has an automatic right to make decisions on your behalf. There must be a legal document by you appointing your attorney.
If you lose capacity to make your own decisions and there is no power of attorney in place, an application for guardianship is required. This is a costlier process and much more restrictive. It involves making an application to the court to become guardian.
Anyone over the age of 16 can grant a power of attorney. Accidents or illness can happen at any age. The sooner a power of attorney is completed, the better. The deed does not need to be registered straight away. It can be stored in your solicitor’s safe and only registered when your attorneys need to start acting on your behalf.
Setting up a power of attorney
Start by having a conversation with someone you trust to take actions on your behalf should the need arise. You will need to make sure the person is happy to be your attorney and that they understand your wishes.
You can draw up the power of attorney document yourself, but most people use a solicitor so nothing is missed. If you write the document yourself, it's important you refer to guidance to make sure your document gives your attorneys the necessary powers they may need to make decisions on your behalf.
Costs
There is a financial cost attached to a power of attorney drawn up by a solicitor, and this will vary depending on the solicitor you use. It is worth considering if you need to make or change your Will, as circumstances can change, you may ask your solicitor to draw up your power of attorney at the same time.
There is also a cost of to register your power of attorney with the Office of the Public Guardian. Costs can change, so please check with Office of the Public Guardian for the most up to date information.
Help with legal fees
Legal assistance may be available if you are on a low income. Depending on your benefits, earnings and savings, you may be entitled to help with the legal fees for drawing up a power of attorney. The Scottish Legal Aid Board has information on eligibility and can help you find a solicitor if you qualify.
Choosing an attorney
You can appoint anyone you wish to be your attorney. This might be a family member, friend, solicitor or other professional adviser.
You can have more than one attorney, and they can act as both financial and welfare attorneys, or separate attorneys can carry out the different functions. It is better to appoint more than one attorney in case your attorney is unable to act for any reason.
More information
Law Society of Scotland – provides contact information for solicitors
0131 226 7411
Office of the Public Guardian (Scotland) – general advice and guidance.
01324 678 300
Age Scotland Helpline – advice on power of attorney
0800 12 44 222
Citizens Advice Scotland – advice and guidance on managing affairs for someone else
01563 543379