HM Insights

Mental Health & Powers of Attorney – are they relevant to everyone?

As a firm, Harper Macleod has been reflecting on Mental Health Awareness Week and what support legal professionals can provide.

Mental health problems affect one in four people in Scotland and can have a detrimental impact on the way an individual thinks, feels and behaves. In recent years, we have seen a welcome reduction in the stigma surrounding mental health disorders through a greater awareness of the issues faced and a collective response to increase support and treatment available to those affected.

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How can Private Client solicitors help?

Whilst individuals automatically seek support and treatment from medical practitioners and specialist organisations, the law is able to provide a level of clarity and certainty during what is an extremely difficult and uncertain time. Private Client solicitors are able to put in place a strategy to protect both the individual's wellbeing and assets throughout the duration of their illness.

A Power of Attorney ("POA") is a legal document that allows an individual to appoint one or more person, they unequivocally trust, to be responsible for dealing with their affairs in the event that they become unable to do so. POA's are often granted in anticipation of permanent incapacity, for example as a precaution to someone being diagnosed with dementia. However, they can also be useful to deal with periods of temporary incapacity, for example bipolar disorder, depression or anxiety. The flexible nature of POA's caters to circumstances where individuals may drift in and out of requiring help.

The importance of advance planning ensures that people with mental health problems preserve as much legal autonomy as possible. A POA prepares for a future situation where a person may find it difficult to make important decisions and enables their appointed attorney to express their wishes and feelings on their behalf.

There are two types of POA's – continuing and welfare.

Continuing Power of Attorney

Granting a continuing Power of Attorney allows the appointed attorney to look after the individual's financial affairs and property. It can be granted with the intention of taking effect immediately or in the event that the granter becomes incapable of handling matters themselves. This may help to alleviate any stress caused by challenging life experiences or financial strains.

Welfare Power of Attorney

A Welfare Power of Attorney enables the attorney to make decisions about the granter's health and welfare, which includes making decision on medical matters. These powers can only be utilised as and when the granter is unable to make decisions about their care and welfare themselves, but allows the granter to choose the person they would like to make these somewhat more personal decisions for them.

The continuing and welfare attorneys do not need to be the same person in fact many people choose to appoint a loved one as their welfare attorney and a solicitor or financial organisation as continuing attorney. If appointing an individual as your attorney it is always advisable to appoint more than one person either as joint attorneys or a substitute attorney.

Get in touch

For help or advice about any matter raised in this article please contact Harper Macleod's Private Client department. Our experienced solicitors will be happy to discuss all of the available options to help you make suitable arrangements.