A Power of Attorney is something older people draw up – is that right? This is a common misunderstanding we come across every day when discussing Powers of Attorney with our clients. You see, a Power of Attorney is such a useful legal tool that it is not something only older people should consider.
None of us has any great level of control over when or if we might become incapacitated. This might happen as a result of an accident or an illness. If that accident or illness results in our being unable to look after our own affairs, that’s when the problems begin.
If you were to find yourself in such a position, a Power of Attorney comes into its own. It allows someone you trust to make the kinds of decisions for you that you would likely make yourself.
A traditional Power of Attorney has been used for many, many years. This kind of Power of Attorney was usually granted for the sake of convenience. For instance, if someone was working abroad but needed somebody here in Scotland to deal with their affairs whilst they were away, a Power of Attorney could be used to allow that to happen. However, whilst this was very convenient, if the granter of the Power of Attorney became incapacitated and was unable to look after their own affairs, the Power of Attorney could no longer be validly used.
More recently, as a result of the Adults with Incapacity (Scotland) Act 2000, two new types of Power of Attorney became available. These two new types of Power of Attorney meant that they could be used especially if the granter became incapacitated. These two new Powers of Attorney are called a Continuing Power of Attorney and a Welfare Power of Attorney. A Continuing Power of Attorney deals with the financial affairs of the granter whilst a Welfare Power of Attorney deals with the wellbeing of the granter. Each of these types of Power of Attorney continue even if the granter should become incapacitated and be unable to look after their own affairs.
Frequently, these two types of Power of Attorney are combined to form a Continuing and Welfare Power of Attorney. This means the attorney can deal with decisions relating to the granter’s finances as well as the granter’s welfare.
A Continuing and/or Welfare Power of Attorney must be registered with the Office of the Public Guardian Scotland. The OPGS then issues a Certificate confirming its registration. The Power of Attorney lasts unless you decide to cancel it.
It is also important to note that even if you have granted a Power of Attorney, you can still make all your own decisions without having to consult your attorney. However, having an attorney can be extremely convenient should there be things you find difficult or onerous to do.
Granting a Power of Attorney at any age can be extremely useful. Life can be unpredictable and having a Power of Attorney as a kind of insurance policy is one way to ensure that your interests and welfare are protected just in case you become so ill or suffer an accident that incapacitates you, even if that is only for a short period of time.
So, to answer the question of when is the right time to draw up a Power of Attorney, we’d say, the sooner the better!