POWER OF ATTORNEY
A Power of Attorney is a legal document signed by you authorising someone else to act on your behalf. Powers of Attorney have been in existence for many years but it is only in the last twelve or so years that they have become more regulated in order to protect the interests of the person who grants the Power of Attorney. The Adults With Incapacity (Scotland) Act 2000 brought about a reform in this area of the law and placed more stringent requirements on Attorneys in order to protect the interests of people who had lost capacity. In Scotland you can now grant a Continuing or a Welfare Power of Attorney either as separate deeds or as a combined deed. A Continuing Power of Attorney deals with property and financial matters and a Welfare Power of Attorney deals with more practical matters such as medical treatment, care, accommodation et cetera. The normal Power of Attorney which is granted is the combined Continuing and Welfare Power of Attorney.
The most common use of a Power of Attorney is for elderly or infirm people who wish to appoint someone else to deal with their affairs. However, as a Continuing and Welfare Power of Attorney can only be granted if you have sufficient mental capacity it is important to prepare it when you are fit and able and in the event of losing mental capacity then the alternative is an Application for Guardianship to the Sheriff Court and this is a very long and complicated procedure and can be very expensive. It is therefore in clients’ interests to grant a Continuing and Welfare Power of Attorney while they are fit and able.
At Donaldson & Henderson we are quite happy to prepare Continuing and Welfare Powers of Attorney and if you are an Attorney and need guidance we are here to help.
Financial and Welfare Guardianships
If a person loses mental capacity prior to signing a Continuing and Welfare Power of Attorney the alternative is either an Application for Guardianship to the Sheriff Court or in some cases applying to the Court for an Intervention Order or an Access to Funds Order. Added to the fact that these procedures take time and severe delays can be experienced in the Court procedures the obvious thing to do is to arrange the Continuing and Welfare Power of Attorney while the person has mental capacity. The other difficulty with a Guardianship once granted is that the Public Guardian requires the guardian to submit annual Financial Statements and where there is for example a house to be sold then it would be more than likely that the Public Guardian’s Office would have to grant consent. All in all therefore the need for the appointment of a guardian should be avoided at all costs. Please call in to see us for advice at an early stage.