Power of Attorney
Did you know? Without Power of Attorney you cannot act for your husband, wife, mother, father or anyone else should they have lost the capacity to make decisions for themselves.
Did you know? 1 in 14 of us will develop dementia at some point in the future. If someone with dementia is admitted to hospital and they lack capacity to make decisions for themselves, they could be in hospital longer than they need to be.
Did you know? Those on low incomes or benefits, especially the elderly, are entitled to have all or part of their Power of Attorney paid for. That’s just over a quarter of the adult population.
What is a Power of Attorney?
A Power of Attorney is a legal document giving someone else (your Attorney) authority to take action or make decisions on your behalf. You choose the person(s) you want to act as your Attorney and what powers you want the Attorney to have. A Power of Attorney is there to make sure that your financial affairs and personal welfare can still be dealt with/protected if things change and you can’t do it for yourself.
Who is a Power of Attorney for?
Everyone over the age of 16 and able to act on their own behalf can apply for Power of Attorney. Accidents or illnesses can happen at any age and the sooner a Power of Attorney is completed, the better. You should register your Power of Attorney with The Office of the Public Guardian as soon as you can. A solicitor can safely hold onto the deed for you until you are unable to make decisions for yourself and it is asked for by your Attorney.
What does losing capacity mean?
If you lose capacity it means that you are no longer able to make decisions about how to look after your own financial and personal affairs, perhaps due to illness eg dementia/stroke etc. Incapacity is determined by a lawyer or doctor and is assessed against specific criteria.
The Adults with Incapacity (Scotland) Act 2000 sets out certain situations in which you could be deemed to lack capacity:
• Incapable of acting on decisions
• Incapable of making decisions
• Incapable of communicating decisions
• Incapable of understanding decisions
• Incapable of retaining the memory of decisions in relation to any matter due to mental disorder
• Incapable of communicating due to physical disability
How do I start the process for Power of Attorney?
Start by having a conversation with someone you trust to take action on your behalf should the need arise. Make sure the person is happy to be your Attorney and that they understand your wishes.
How much will it cost?
Check eligibility for Legal Aid with Scottish Legal Aid Board (SLAB). SLAB helps those on low and modest incomes gain access to the legal system. If not eligible for legal aid, visit mypowerofattorney.org.uk for local information or shop around for a solicitor to draw up a Power of Attorney document. Legal fees depend on each case and costs. The solicitor will be able to provide an estimate before work is carried out on your behalf.
What should I do next?
If you want to arrange a Power of Attorney you can find more information at mypowerofattorney.org.uk or contact a local solicitor to draw up the documents.
For more information about eligibility for legal aid contact the Scottish Legal Aid Board (SLAB).
Phone: 0845 122 8686
Is Power of Attorney just for older people or wealthy people?
No – Each of us make daily decisions that many of us take for granted, from what we eat to where we live. Power of Attorney is not just about looking after your financial affairs. It is necessary to allow you to choose who should decide your personal welfare issues, such as:
- Where you live
- Medical treatment and care (eg if your medical care is private)
- Your daily routine
I am married and have grown up children. Surely my family can act for me and make decisions on my behalf?
No one has an automatic right to do this. There must be a legal document by you appointing your chosen person/persons as your Attorney. If no one is legally appointed by you to act, then no one has legal authority to do so.
What powers can be included in the Power of Attorney deed?
The deed can cover both financial and welfare provisions or you can have separate deeds to cover your financial affairs and welfare matters. The financial provisions can include power to purchase and sell heritable property (your house), power to operate bank accounts, power to claim and receive all pensions, benefits, allowances, etc. There are many other powers which can be included or left out as appropriate, depending on your circumstance. Welfare powers can include power to decide where you should live, to have access to your personal information, to consent or withhold consent to medical treatment. There are many other powers which can be included to ensure that all appropriate powers are available to meet your needs.
Who should I appoint as my Attorney?
You can appoint anyone you wish to be your Attorney, eg a family member, friend, solicitor or other professional adviser. It is up to you whether you include the same person(s) as both financial and welfare Attorneys, or if you have separate Attorneys to carry out the different functions.
You can appoint joint Attorneys with similar or different powers, or one or more substitute Attorneys to take the place of an Attorney who dies, loses capacity or resigns.
What happens to my Power of Attorney once it has been signed?
Once the Power of Attorney document has been signed it should be registered with The Office of the Public Guardian (OPG). Once registered the OPG will issue a certificate to your solicitor (if appropriate) and to you. The financial powers can become effective immediately if requested by you, but the welfare powers are only effective once you are no longer able to act on your own behalf.
If my Power of Attorney is registered, can I change my mind?
As long as you have capacity, you can revoke the powers granted in your Power of Attorney. To do so, you must give written notice to The Office of the Public Guardian
Phone: 01324 678300
Around 89,000 people register Power of Attorney every year in Scotland. @OPG Annual Report 2019.
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- What is dementia?
- Power of Attorney