A Power of Attorney is a legal document that allows appointed Attorneys to deal with your personal matters in the event of you becoming unable to do so due to incapacity.
A Power of Attorney requires to be granted whilst you still have the capacity to do so.
A Continuing (financial) Power of Attorney can be used either while you're still capable of making those decisions yourself, or after you have lost capacity. For example, you could request that your Attorney goes to the bank for you to withdraw money however you would still be able to deal with your own finances as long as you have the capacity and desire to do so.
A Welfare Power of Attorney will allow your Attorney(s) to make decisions about your health and welfare on your behalf. The Welfare powers can only be used once you have become incapable of making those decisions yourself and the Power of Attorney document will detail how capacity will be determined.
The most common Power of Attorney is a 'combined' one, which contains both Continuing (financial) and Welfare powers.
How many Attorneys should I appoint?
Deciding who to appoint as your Attorney can be a daunting prospect and should be someone you trust. Some people choose to appoint joint Attorneys, for example their children. This would mean that all appointed Attorneys would have a say in the decision making process regarding your affairs.
It is recommended that a 'back up' Attorney should be appointed. A back up Attorney would only act in the event that the original Attorney was unable or unwilling to act, for example due to their own incapacity or death.
It is helpful to appoint a back-up Attorney for the following reasons:-
- If your original Attorney was unable or unwilling to act, the back-up Attorney would automatically be able to act, without any requirement to amend the original deed.
- If your Power of Attorney appointed one Attorney and they predeceased you, or did not wish to act, you would require to revoke (cancel) your existing Power of Attorney and make a new one. Whilst there is no cost to revoke an existing Power of Attorney, there would be legal fees involved in drawing up a new deed, together with registration costs for registering the new Power of Attorney
- If no back-up Attorney is appointed, your Attorney is unable to act and you do not have capacity to grant a new Power of Attorney, a Guardianship Order may be required. Having a Guardian appointed to deal with your affairs is a costly process in Court that can often take several months.
Get in touch
Our approachable Private Client Team at Harper Macleod will be happy to discuss any queries you may have regarding the Power of Attorney process. Please feel free to get in touch using our contact details below.