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Featured article

Do I Need A Power of Attorney And How Do I Get One?

Catriona is a specialist in Powers of Attorney law in Scotland. This article is about why every adult should have one and explains their purpose.

power of attorney (POA) is a document that appoints someone you trust to be your attorney and authorises them to act on your behalf, during your lifetime. But why would you need such a person when you are young, fit, and healthy?

Your attorney can act for you either if you ask them to and give them your permission, or if you have lost capacity and are not able to act and make decisions for yourself.

I probably don’t need a Power of Attorney

The key thing about Power of Attorneys is that if you wait until you definitely need it, it might be too late. It should be discussed, drafted, and signed while you have full capacity and without needing anyone else to be involved. There should be no doubts about your instructions.  A bit like house insurance – you could say that you don’t really need this, but if you wait until your kitchen is smoking you’ll have a hard time getting any insurance cover!

What’s covered in the POA? What can my Attorney do?

There are two main aspects to a POA:

The financial side includes things like accessing your bank accounts, paying bills, dealing with your savings, investments, property, tax, benefits, pensions, and purchasing equipment, paying for care, and so on.

The welfare side of things includes consenting or withholding consent to medical treatment, making decisions on care and accommodation, and day-to-day personal matters such as participation in social, religious, cultural activities, as well as dress, diet, appearance, and so on. 

The crucial difference is that welfare matters can only be dealt with by your attorney if you have lost capacity and are unable to make such decisions for yourself, whereas financial matters can be dealt with by your attorney if you have lost capacity and/or if you give permission for them to act for you.  This often happens if there is a physical reason making it difficult for you to get out and about or to speak on the phone, use technology for banking, and so on.

I need a Power of Attorney for my parents

Most solicitors will be happy to have an initial chat with you if you think a family member might need a POA, however, they do need to take instructions directly from the person putting the POA in place. It is important that they verify their identity and ascertain that they have the capacity to deal with this. The solicitor must also make sure that no one is putting them under any pressure or influencing decisions.  

How do I get started?

Get in touch with your solicitor who will be able to administer your Power of Attorney. If you don't have a solicitor, then look for a firm of locally respected solicitors with great reviews, or take a recommendation from one of your friends or colleagues. It is important that you like and trust the solicitor that you deal with.

Catriona Torrance is a solicitor at ELP Arbuthnott McClanachan in Edinburgh.  She is a private client specialist and has a wealth of experience in drafting powers of attorney, wills, and estate administration.

Author: Catriona Torrance, Private Client Solicitor, ELP Arbuthnott McClanchan

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