“I’m sorry, but I can’t speak to you as you are not the account holder – and you don’t have powers of attorney”
Have you heard that before?
There you are trying to help someone out and you get stymied by bureaucracy.
Who needs Powers of Attorney?
Almost everyone might find a power of attorney useful at some point or another. It’s not just the elderly relative who may be going deaf and has trouble on the phone. Perhaps you are often abroad or you are going on an extended holiday and want someone to be able to deal with any issues that arise while you are away. You could grant standard Power of Attorney for specific things like signing a deed for selling your house but that is limited to the single power granted and should not be confused with continuing Powers of attorney which is registered with The Public Guardian’s Office and regulated by that Authority.
A Continuing Power of Attorney is a bit like an insurance policy
You’re glad when you’ve got one and something has gone wrong. You’re really upset when you know you should have done one but kept putting it off and now it’s too late.
Powers of Attorney can be general or 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 Powers of Attorney you are not giving away your ability to deal with things for yourself.
All you are doing is bringing someone in to help you if needed. Normally, a Continuing Power of Attorney will contain a number of powers specifically allowing the attorney to carry out particular tasks on your behalf. Most of these tasks cover the everyday paperwork and business transactions which each of us has 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 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, for instance if you can’t remember family birthdays or previous addresses in order.
Your Attorney can be anyone you like but should be someone that you feel that you can trust to act in your best interests.
It is also possible to have more than one Attorney.
For practical reasons, if you have more than one Attorney then they should be able to act individually but in those circumstances they have to let each other know what the other is up to.
Neither form of Power of Attorney becomes “active” until it has been registered with the Office of the Public Guardian. This can take several weeks, so it’s better to register Powers of Attorney straight away rather than hang on to it and only register it once it’s 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.
The two types of Powers of Attorney, Continuing and Welfare, can be, and usually are, combined into one
This is the closest the legal profession gets to a BOGOF – a “buy one get one free” offer! 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.
A final word about what happens if there are no Powers 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.
Granting Powers of Attorney when you are still in good health is much much simpler and gives you peace of mind.
© Alan Livingstone for Hastings Legal 2017
“The ultimate source of happiness is not money and power, but warm-heartedness”Dalai Lama
We recommend that every adult should have in place an up-to-date Will and a Power of Attorney.
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