Power of Attorney Solicitors Ayr, Troon, Kilmarnock, Irvine and Glasgow

Most people are reluctant to think that there may come a time where they’re no longer able to look after themselves. Whilst understandable, it is important that you take steps to identify someone who is capable of looking after you and your interests should you ever be unable to do so yourself, and to provide them with the necessary powers to do so. It is for this purpose that a Power of Attorney can be very useful.

A Power of Attorney is a document that allows you to identify someone that you trust to look after you and your interests in the future, should you be unable to do so yourself. It allows you to set out exactly how and when other people become involved in making decisions on your behalf. In Scotland, there are two kinds:

Financial Power of Attorney

This is otherwise known as a ‘Continuing Power of Attorney’, which allows you to give someone else responsibility for your finances and property should you find yourself unable to manage them yourself.

Welfare Power of Attorney

This type of Power of Attorney deals specifically with decisions concerning your healthcare. This document allows you to give directions as to how you wish to be cared for, if you should become incapacitated and unable to care for your own health.

You will also be able to combine the two, giving someone combined responsibility for your financial well-being and welfare. You should, however, take specialist advice when considering this, to find out if it is best suited to your circumstances.

If you are interested in knowing more about Powers of Attorney, the dedicated advisors at McLennan Adam Davis Solicitors can help you. We are highly experienced in advising on and drafting Powers of Attorney: we will give you objective legal advice on the meaning of these documents, and will ensure that your instructions are accurately and validly recorded within them.

View the PDF of the Code of Practice for Continuing and Welfare Attorneys.

Power of Attorney Information

A Power of Attorney is a legal document which allows an authorised person (the Attorney) to look after your financial and/or personal affairs where you are unable to do so either due to illness or mental incapacity.  Indeed even if a client is going abroad for a time they can appoint an attorney here in the United Kingdom to step into his/her shoes and attend to their personal/financial affairs on his/her behalf.

In this brief guideline, however, we will concentrate on a Power of Attorney being granted where the client suffers illness or mental incapacity.  By the granting of an appropriate Power of Attorney this can assist families with the considerable problems which may arise when an individual loses capacity.  If no Power of Attorney is in place it is very difficult if not impossible to manage the affairs of the party who has lost capacity.  It may well require the complicated and expensive route of having to appoint a financial guardian to manage that parties affairs as the only solution to the difficulties encountered. 

This situation could be avoided if the party granted a Power of Attorney.

The Power of Attorney is a protective measure and will  not come into effect until the granter has either lost capacity as ascertained by their medical adviser or alternatively has provided an appropriate letter to the effect that they feel they are unable to look after their personal and/or welfare affairs and wish their attorney to act on their behalf in that capacity.  When originally signed the Power of Attorney documents are held or postponed until they may be required.  If the party granting the Power of Attorney neither loses capacity nor suffers illness then the Power of Attorney does not require to be utilised and is simply held. 

Powers of Attorney documents after April 2001 require to be registered with the Office of the Public Guardian who has full responsibility to oversee the actings of Attorneys.  The Adults with Incapacity (Scotland) Act 2000 and any amendments thereon is the legal principle which governs the Power of Attorney and the actings of the Attorney.  Anyone appointed as an Attorney should familiarise themselves with the principles set out in this act together with the code of conduct set out by the Scottish Executive and as a matter, of course, a copy of the code of practice will be issued by ourselves to a proposed attorney upon completion.

The individual who takes up the appointment of the Attorney is taking over and acting for the person who appoints them to act “in their shoes.”   The decisions they make must be based on what the person whom they act for would have decided in the circumstances pertaining.   The general principles of an Attorney acting under the Incapacity (Scotland) Act are:-

  1. Any decision or intervention must be for the benefit of the granter of the document.  (Namely the adult who has granted the Attorney)
  2. You require to take the least intrusive/restrictive method of intervention on behalf of the adult.
  3. You must take into account the known past and present wishes of the adult.
  4. You should consult with relevant others – i.e. relatives, primary carers in relation to decisions made, and that decisions made are in the best interests of the adult. 
  5. You should endeavour to encourage skills, training and education of the adult for whom you act as Attorney on behalf of.

At McLennan Adam Davis we have recommended styles of Powers of Attorney which we use for clients and would encourage the granting of a suitable Power of Attorney for older clients who are concerned with mental incapacity or illness in later life.   The Power of Attorney will allow a speedy and appropriate/necessary solution to a difficult situation which can arise if an elderly client loses capacity or suffers serious illness.

Following upon the “D report” published February 2012 further guidance has been offered by the Law Society of Scotland pertaining to Powers of Attorney.  In particular, as is our normal procedure, capacity must be established initially before proceeding with instructions.  For clients who bring in elderly parents, whilst we are not adverse to discussing the merits of Powers of Attorney in front of all parties, the solicitor would require to see the individual looking to grant the Power of Attorney on their own at some point during the initial meeting to confirm capacity and ensure no undue influence or other mitigating factors may be prudent.  If there is any doubt on capacity as a matter, of course, a medical report would require to be obtained from the proposed client’s doctor on this matter before proceeding further.

A Power of Attorney is a powerful document, and whilst it has considerable benefits for client/s there are also risks involved, including the risk that the attorney could misuse the powers and the consequences of same will be discussed further at the initial meeting.  An attorney needs to be aware of the degree of responsibility and possible liability he is taking on.  Generally, unless otherwise requested, our Powers of Attorney cover both financial and welfare powers.  Financial covering all matters pertaining to financial issues whether heritage or bank accounts, insurance, bills, debts etc.  Welfare powers can only come into effect when the granter of the Power of Attorney has lost capacity.  They allow the attorney to participate in the relevant decision-making process regarding care etc., involvement with Social Work if required.

Attorneys when acting, therefore, need to be aware of the guiding principles and the Code of Practice (provided) and maintain detailed and appropriate accounts, including receipts.

When an attorney acts properly, complies with the Code of Practice and obtains legal advice if and when necessary they should have no major concerns about their actings.

This information is to be used as a guide only.  It does not comprehensively cover all situations arising.  Advice should be sought from ourselves with regard to any respective individuals position.                                                                                    

View the Code of Practice for Continuing and Welfare Attorneys here. 

Contact our Private Client Solicitors Ayr, Troon, Kilmarnock, Irvine and Glasgow

McLennan Adam Davis Solicitors is a firm of dedicated legal advisors working throughout Ayrshire, dedicated to providing clear and comprehensive legal advice tailored to our clients’ individual circumstances and needs. We are very proud to serve our clients, providing access to specialists across all areas of the law in their local area. If you want to speak to a compassionate and understanding team of lawyers, who offer clear and affordable legal advice on any aspect of the law governing wills, executries or powers of attorney, please contact our team.

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