Without you having granted legal authority, your spouse or family would have no automatic right to make decisions on your behalf in the event of you suddenly losing capacity. Therefore no matter what age you are, it is sensible to consider granting a Power of Attorney. . Below is an overview of the process of granting a Power of Attorney which will give you an introduction to the function of a Power of Attorney and effect of granting such a document.
A Power of Attorney is a recognised written legal document which gives someone else authority to make decisions and act on your behalf. It differs from a Will in that it takes effect when you lose capacity ot act on your own behalf. A person who grants a Power of Attorney is known as the ‘granter’ and the person you appoint to act for you is known as the ‘attorney.’ You have the authority to choose which powers your Attorney should have. The Adults with Incapacity (Scotland) Act 2000 governs how a Power of Attorney should be created and outlines the requirements to be met before a Power of Attorney can be registered with the Office of the Public Guardian and become enforceable. This safeguards the rights of the granter and responsibilities of the attorney. The Scottish Government provides Codes of Practice for Continuing and Welfare Powers of Attorney. These Guides set out the functions and responsibilities of Attorneys and the implications for the granter of the Power of Attorney. Once a Power of Attorney is signed, the Certificate is sent to the Office of the Public Guardian together with a consent form signed by your Attorney, indicating that they are prepared to act for you. Once a Power of Attorney is registered this will be returned by the Office of the Public Guardian and you will be sent an authentic copy for your retention.
You are free to decide who you wish to act as your attorney. You may want to consider appointing a member of your family or a close friend as your attorney, as they will be in a position to understand your needs and deal with your affairs. You can have more than one Attorney and can appoint a substitute Attorney in case your Attorney should predecease you, resign or become incapax. You have the power to appoint different people to deal with your finances and welfare. Appointing someone you can trust to deal with your money or property only is known as a Continuing Power of Attorney. You can decide whether the powers granted should come into action immediately or at a later date, perhaps once a medical practitioner has confirmed that your capacity has become impaired. If you wish the powers to come into force at some future point, a statement to that effect must be incorporated into the Power of Attorney document. Appointing someone to deal with any decision making in respect of your health or care is known as a Welfare Attorney. Such an Attorney may, for example decide on an appropriate nursing home for you to be cared for in. Such welfare powers can only be used once the granter has become incapable. You require to clearly specify the powers granted to your attorney to allow them to act for you. Power of Attorney documents are interpreted strictly and powers cannot be assumed as being given. We can advise you on the most appropriate Power of Attorney in your particular circumstances.
In the event that a Continuing Attorney is declared bankrupt when appointed or thereafter, they cannot act. This arises when their estate has been sequestrated for insolvency or a protected trust deed has been granted. However, once a person has been discharged from bankruptcy they can act as a continuing attorney once again. An attorney who is bankrupt is still able to act as a welfare attorney. If your circumstances change and you decide you no longer wish your Power of Attorney to be enforceable, you can cancel a Power of Attorney with the Office of the Public Guardian. You may cancel all or part of the powers granted under the deed and we can advise you on how to do so.
At McSherry Halliday we now register all of our Powers of Attorney with the Office of the Pubic Guardian’s Electronic Power of Attorney Registration (EPOAR) online facility. The speed of the system is attractive as it allows Powers of Attorney to be processed within three working days of the application being made to the Office of the Public Guardian. This allows us to offer our clients a more efficient service, especially in circumstances where immediate action is required, such as in relation to transfer from a hospital to a nursing home. Should you wish further information on granting a Power of Attorney please contact us and we will be happy to assist you.
‘Mental capacity’ can be defined as having the ability to act, make decisions, communicate, understand and retain memory. This could involve everyday decisions, for example when to pay a bill or more significant decisions such as living arrangements. There may be instances where it is too late and the client’s mental state may have deteriorated to the extent that they are incapable of doing these things. In these circumstances, there are options to enable you to deal with these matters on behalf of another incapacitated person.
Such options are an Access to Funds Application, an Application for an Intervention Order or an Application for a Guardianship Order.