Why Should I Make a Power of Attorney?

Author: scott
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  • The Adults with Incapacity (Scotland) Act 2000 (“the Act”) introduced a whole new range of measures to cover decision-making for “Adults with Incapacity” in relation to both property matters and matters of personal welfare.
  • Broadly speaking if a person loses physical and/or mental capacity – for whatever reason – to take actions, or make decisions, for him or herself then someone may only do so for them if properly authorised.
  • Even your spouse, civil partner, or children would not have an automatic right to take actions or make decisions on your behalf without some formal authority.
  • That authority may be given by applying to the Court if and when the need arises. But that is expensive, time-consuming and the person who has lost (or is losing) capacity will have relatively limited direct input. An alternative is to take the initiative and decide in advance who you would want to make decisions and act for you if you lost the capacity to do so yourself.
  • That is where a Power of Attorney comes in. It is a written document (recognised by the Act) giving someone else authority to take actions or make decisions on your behalf. You choose who you want to appoint and what powers they are to have.
  • A Power of Attorney does not take away any of your own powers to act. Regardless of having granted a Power of Attorney, you may carry on dealing with your own property and welfare matters unless and until you actually lose the capacity to do so.
  • The Power may, if you choose, have effect straightaway so that the person (or persons) you have appointed may deal with property matters for you even although you still have capacity to do so yourself.
  • So, for example, if you grant a Power of Attorney and had to go into hospital your attorney could deal with banking matters for you until you recovered. Alternatively, you can provide that the Power may only be used if and when you have lost capacity to act for yourself.
  • You can appoint who you want to be your attorney – or attorneys. You can appoint family members, friends, or a professional adviser (or any combination of these). You can also appoint one (or more) attorney(s) to deal with property matters on the one hand and one (or more) different attorney(s) to deal with personal welfare matters on the other hand. It is up to you.
  • The Power has to be registered with the Office of the Public Guardian before it can actually be operated. She charges a fee for this which is currently (as at November 2016) £74 per registration.

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Neil Mackenzie: njm@mitchells-roberton.co.uk

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