Mythbusting powers of attorney

Why is this important? How can powers of attorney make a positive difference? And what common misconceptions about these documents do we need to address?

In the first instance, people often assume powers of attorney only apply to the elderly or those who have been diagnosed with an illness that might ultimately have an effect on their ability to make decisions for themselves.

The reality is that every year many people across Scotland — across a broad age range — lose capacity because of, for example, accidents, head injuries, strokes or a progressive illness.

And in these situations, a power of attorney comes to the fore: it names someone who can act on your behalf, including paying bills, managing your welfare and making key decisions.

So an important first question for us all is: “If you ever were in that situation, who would you choose to step into your shoes?”

And that brings us on to our first power of attorney myth …

“Surely my next-of kin can automatically act for me without a power of attorney?”

No. No-one has the right to act on your behalf without legal authority.

There’s no automatic assumption in law that you’d choose your nearest relative to be your attorney. They may be living far away, unable to act, or (in some instances) simply not be the person who knows you best.

It’s crucial you stipulate who your attorney (or attorneys) would be. Without a power of attorney, your relatives or friends may have to apply to court for a guardianship to be able to make decisions for you, and that process can take several months — or even a year — and can be costly.

“Aren’t powers of attorney just for older people?”

The reality is that anyone can need one at any time: a power of attorney must be drafted when you’re well and can understand and explain your wishes.

Unfortunately, sudden accidents and illnesses can happen to anyone and it’s important that, whatever happens, plans are in place to make sure responsibilities are taken care of.

If we, for example, take the responsibilities of the so-called ‘sandwich generation’ these will include caring for both older relatives, who may be unwell or have specific health conditions, as well as children, on top of looking after at least one household, as well as any pets.

“Surely this is covered in my will?”

A will and power of attorney are two completely different documents. Your power of attorney provides cover during your lifetime and expires when you die. Your will, on the other hand, only comes into effect once you’ve died. 

“I would like some assistance but I’m not ready to relinquish complete control over my affairs.”

Understandably, many people are daunted by the prospect of ‘handing over control’.

Once registered, financial powers can kick in straight away, which is useful for people who can’t deal with their banking or have an impending stay in hospital.

Welfare powers do not begin unless you are genuinely unable to make decisions for yourself. At all stages, you should be consulted about your affairs and involved where possible.

The attorney is also duty-bound to act in your best interests.

“I have a power of attorney from elsewhere, so I don’t need one for Scotland.”

Don't assume your power of attorney will work as you’d expect it to in another country. Even between Scotland and England there are differences that call for a separate document.

The bottom line is that if you live here, it’s worth putting a Scottish power of attorney in place

“I can put this off until later.”

You can. But there are risks.

Remember, it can take several months from the date of your instructions for the power of attorney to be signed then registered.

As with your will, you need to make sure you keep the document up to date if your circumstances (and chosen attorneys) change, as any valid document will be upheld, even if you’ve changed your mind.

Deciding what to do in the future should you be incapacitated or unable to make your own decisions isn’t easy, often — understandably — we don’t even want to think about what might happen, or even raise the subject with loved ones.

That makes getting independent advice from your solicitor all the more important.

If you found this article useful, our private client team has published other insight blog posts in our news and views section.