Property Search
05/02/2010
Information Notes on Powers of Attorney
When we have clients seeking to instruct us on making a Power of Attorney, the first event is a discussion or meeting between client and solicitor to go over the legal and practical matters involved in this type of deed.
However, there are several universal factors and principles and it is worthwhile setting these down in this kind of short note for clients to read. Therefore we would ask you to note the following information:
1. A power of attorney is an authority granted by you in favour of a trusted individual – can be a family member, - a friend, a professional person who can deal with aspects of your financial/property matters and/or personal welfare. You can appoint a single attorney or more (but not usually more than two)
2. There are two types of Power of Attorney:
a) A Continuing Power relates to financial/property matters e.g. dealing with bank accounts, signing documentation required in house transactions/mortgages etc. This may be granted with the intention of taking effect immediately or continuing in the event that you become incapable of handling matters yourself.
b) A Welfare Power of Attorney, which includes matters such as making decisions on medical matters, your personal appearance and diet. These powers cannot be exercised until your doctor confirms that you no are no longer capable of making these decisions yourself.
3. A Power of Attorney can incorporate both of these types of powers if you wish. The deed will set out the precise powers that you wish your attorney to have. It is sensible to make this list as wide as possible so that it covers all matters in which your attorney may need to act. It must be signed by you before an adult witness and acknowledged by a solicitor present when signed. The solicitor has to be satisfied of the Adult’s ability to appreciate what he or she is signing.
4. A Power of Attorney will not be effective until registered with the Office of the Public Guardian. For this reason, we strongly suggest that clients consider signing a Power of Attorney in favour of a trusted friend or relative even if it may not be required for some time. It can be stored safely in our office. It can then be registered at a later date either with your consent, or in the event a medical practitioner states that you are no longer able to manage your own affairs.
5. It is not pleasant to think of the future when you may be unable to deal with your own affairs, due to dementia, or physical disability, or general frailty. But it is a wise person who takes a little time to consider these matters – often when making or updating a will – so that the business can be dealt with and then put to one side, almost forgotten even, but no longer a problem. For many people making a Power of Attorney in advance will save a great deal of trouble later on. If someone becomes mentally incapable, but has not made a Power of Attorney, then it is too late. They are no longer able legally to make the appointment or sign the document. In that kind of case, someone else (again family, friend, professional person) must apply to the sheriff court for a guardianship or similar order under the Adults With Incapacity Act. This is a lengthy, expensive and complex court process, and is likely to cause the family or those supporting the incapable person untold grief. It can be avoided by acting in advance.
6. If you wish further advice on the practicalities and costs of creating a Power of Attorney, contact one of our solicitors.
End