Legal Capacity and Powers of Attorney

Everyone in Scotland over the age of 16 is presumed to have the “legal capacity” to make decisions for themselves and to look after their own affairs.

The problem with legal capacity is that it can be lost, usually by way of illness.  When this happens, the law provides options for others to be granted powers to act on behalf of the incapacitated person.

One of the easiest ways to do this is for a person to anticipate their own future incapacity and to grant a Power of Attorney to someone else before incapacity occurs. A Power of Attorney is a document that spells out who the attorney is and what powers they may use on your behalf.

A Power of Attorney can only be granted by someone who is capable of understanding what he or she is being asked to sign.

For instance, someone having recently been diagnosed as suffering from a dementia related disease can still be quite capable of understanding the effect of a Power of Attorney but someone in the later stages is unlikely to be capable.

The person creating the Power of Attorney is called the “granter” and the person appointed is called the “attorney”.

Why grant a Power of Attorney?

A Power of Attorney is a bit like an insurance policy – you’re glad when you’ve got one and something has gone wrong; and really upset when you know you should have done one but kept putting it off and now it’s too late.

All you are doing is bringing someone in to help you, if needed.

In a situation where incapacity effects a family member but there is not Power of Attorney in place, the family could well face a potentially upsetting and expensive process to get the necessary powers to act for the incapacitated person.

It is a common belief that spouses automatically have the power to act for each other if one of them loses capacity – however this is not true.

To obtain powers over someone’s affairs once incapacity occurs, you must apply to the local sheriff court to become a guardian of that person, or to become their “intervenor”.

Court actions can be drawn-out and expensive, and are likely the last thing most people need when they are worried about the loss of capacity of a family member.   This is why a Power of Attorney can be so valuable, as the attorney can step in and make decisions as and when required, without the need to go through a court action to obtain guardianship status.

Types of Power of Attorney

There are two types of Powers of Attorney, Continuing and Welfare, which can (and usually are) combined into one – the closest the legal profession gets to a “buy one get one free” offer!

A Power of Attorney can be general or it can be specifically limited to specific tasks. The vast majority of Powers of Attorney which are put in place are what we call Continuing Powers of Attorney. These are designed to continue in use even if the granter subsequently becomes incapable of dealing with his or her own affairs. By granting a Power of Attorney you are not giving away your ability to deal with things for yourself.

Normally, a Continuing Power of Attorney will contain a number of powers specifically allowing the attorney to carry out specific tasks on your behalf. Most of these tasks cover the everyday paperwork and business transactions which each of us faces with our everyday finances.

On the other hand, a Welfare Power of Attorney only comes into play if you are incapable of looking after yourself and someone needs to make everyday decisions about where you should live, consent to treatments etc. You can also determine at what point you think you have become incapable. The test does not have to be a scientific one and can be particular to you i.e. if you can’t remember family birthdays or previous addresses in order.

Who Can Be My Attorney?

Your Attorney can be anyone you like but should be someone that you feel you can trust to act in your best interests.  Being an attorney is a position of trust.  The granter  should only choose a person they really trust to act as their attorney, and who is able to carry out the job required of the role.

You can appoint multiple attorneys under one Power of Attorney document.  You can also have substitute attorneys in case your preferred attorney is unable or unwilling to fulfil the role for whatever reason.

The Office of the Public Guardian

All Powers of Attorney must be registered with the Office of the Public Guardian for them to be valid.  The Public Guardian is an official with various powers to oversee how adults with incapacity are dealt with in Scotland. Most of the law governing this topic is contained in the Adults with Incapacity (Scotland) Act 2000. Under that law, anyone over the age of 16 who has lost legal capacity is called an “Adult”.

Neither form of Power of Attorney becomes “active” until it has been registered with the Public Guardian. This can take several weeks, so it is better to register a Power of Attorney straight away rather than hang on to it and only register it once it is needed. Hanging on to it and planning to register it later, once it is needed, may lead to an inconvenient delay in the attorney being able to act.

Incapacity without a Power of Attorney

A final word about what happens if there is no Power of Attorney and someone becomes incapable; there are various statutory procedures for accessing funds or being appointed by the Sheriff as a guardian. These procedures can be time consuming and expensive and generally involve the person appointed in having to account for every penny that is spent on the other person’s behalf. A Power of Attorney is much, much simpler and can afford you peace of mind during difficult circumstances.

© Tim Taylor for Hastings Legal 2018

“Being an attorney is a position of absolute trust – so you should only choose people you trust completely.”Hastings Legal Lab

There are three legal documents every adult should have in place – a Power of Attorney, a Will and an Advance Medical Directive.

Hastings Legal specialise in providing friendly legal advice and services for Later Life matters. We are are regulated by the Law Society of Scotland so you can be sure that we have your best interests at heart.

Hastings Legal have offices in Kelso, Duns and Selkirk. If you are too ill to come to us, don’t worry, one of our solicitors can visit you at home or in Hospital

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