Continuing and Welfare Powers of Attorney….Why Should You Have One?

They are recommended by solicitors universally, and are becoming ever more popular; but what is a Power of Attorney, and more importantly, why do you need one?

The Adults with Incapacity (Scotland) Act 2000 provided a framework for protecting the welfare and managing the finances of adults who lack capacity due to mental illness, learning disability or a related condition, or an inability to communicate. The instrument you can grant to provide this protection is a Continuing and Welfare Power of Attorney. By granting a Power of Attorney, you are taking control of a situation before it presents itself. There are two aspects to a Power of Attorney; the continuing side in relation to financial matters; and the welfare side in relation to health and wellbeing matters.

Firstly, a Continuing Power of Attorney allows an Attorney to act on behalf of the Granter in relation to all financial or business matters. This would cover operating their bank account, organising insurances, and even selling any property. Once the Power of Attorney has been signed and registered, the Attorney can commence their duties whenever the Granter chooses. This is beneficial in situations where the Granter has not lost capacity but is perhaps physically unable or struggling to look after their affairs. The attorney would be able to continue to act in the event of the Granter losing capacity in the future.

The second is a Welfare Power of Attorney which would allow the Attorney to take decisions relating to medical treatment, care and accommodation. In this case, however, the Attorney would only be able to take these decisions in place of the Granter if they were to lose capacity, which will only be confirmed by a doctor. It is vitally important that a Granter advises their attorney what medical treatments they would choose and how they would like to be treated prior to this coming into effect. An Attorney should be able to commence their duties knowing exactly how the Granter would like to be treated.

Who should you choose as your Attorney? If you are married, most Granters will appoint their spouse. However, it is also recommended that you choose a substitute for your spouse as they may not be able to act in the future. You can also have more than one Attorney, and they can make decisions acting together or independently depending on your wishes.

Perhaps the greatest benefit of a Power of Attorney is preventing a negative. If you lose capacity without having a Power of Attorney in place, a Guardian may have to be appointed through the courts in order to make decisions on your behalf. This process is costly and immeasurably time consuming. By taking steps now, a Power of Attorney can be set up within twelve weeks of signing and can act as an insurance policy going forward. A Power of Attorney will not only alleviate the stress for the Granter but also for the family and friends who will be able to take care of the Granter’s needs without having to worry about administrative hurdles.

Please contact Greg Lawson at our main office on 01224 563367 or by email at g.lawson@jgcollie.co.uk to arrange a meeting to discuss granting a Power of Attorney. It’s never too early…

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