Answering common questions about Power of Attorney
The rise and rise of Power of Attorney in Scotland has been little short of incredible. What used to be an arcane and mainly commercial document for clients who spent time abroad, or had business in different locations, has morphed spectacularly into personal support for millions of families and individuals throughout the UK.
What is a Power of Attorney? I hate the name – we have in Scotland adopted an English and USA legal usage, “attorney” being a word from the English based on old Norman French which was the original language of English law: atorne - an appointee. The word now has a specific meaning in America for a practising lawyer, but in RUK and beyond represents someone who acts for someone else in a variety of duties and matters. If it had been up to me, I would have called the document a Minute of Agency, as what it does is to create an agent for the person who needs one. As an agent the attorney steps into the shoes of the granter – doing financial transactions, dealing with banks, talking to the social work department, managing property matters and collaborating in medical decisions. But in spite of my pet peeve about the title, it is a robust and essential tool in helping a person who can no longer do everything for themselves.
Note that Scotland has its own national regime and law, and while we recognise English Powers of Attorney for many purposes, it is essential for someone living in Scotland to get a Scottish Power of Attorney made by a Scottish solicitor.
To help get your head around everything there is to know about Power of Attorney, let’s answer some of the most commonly asked questions.
Why make a Power of Attorney?
Because we may suffer from a sudden and unforeseen illness such as a stroke, or gradually lose our strength and health until the point creeps up on us that we need support from someone who can. If we pass that threshold and have not got a Power of Attorney already in place, those around us have no legal authority to pay our bills, arrange our care, stop us from being pursued for legal obligations we are subject to. Being next of kin, a spouse/partner or an adult child are not of any usable legal status.
What if we don’t make a Power of Attorney in time?
Someone then has to seek a court order for authority to take over our admin or care. That is called a guardianship or intervention application, it is to the sheriff court, is incredibly intrusive (anyone applying to be guardian has to be investigated by various officials and prove to the court he or she is fit and proper, and not just out to feather their own nest) and all sorts of medical and psychiatric reports have to be obtained. Potentially the costs, if not legally aided, are in the thousands of pounds. And it can take months.
How much do Power of Attorneys cost?
There is not a one-size-fits-all, and the fees depend on the amount of work and any complexity in the appointment or the estate over which it is being made. But we are talking the low-to-mid hundreds of pounds. The Public Guardian Scotland also charges a fee of £81 per Power of Attorney registered. The overall cost is much, much less than a guardianship case.
But isn’t it true that the Power of Attorney may never be needed?
Yes, we may remain in excellent health until a ripe old age and then die in our own home that we have lived in independently. But no-one knows the future, and we might think of the Power of Attorney like a car insurance policy – we hope not to make a claim, but who knows what crazy driver may plough into us next week.
Whom should we choose as an attorney?
There is no golden rule, but it must be someone who is/are trustworthy, capable and preferably reasonably local. We can select a team/couple of attorneys to work together. He/she/they can be family, friends, professionals or a combination. Best always to provide a substitute(s) in case of need. For example, a married couple might appoint each other initially as attorney, but what if they both get ill or are in the same accident? Backup appointments are wise.
What if it is not clear if a person has the mental capacity to understand the Power of Attorney?
If for example an older person who is beginning to show signs of dementia or other mental difficulty has to sign a Power of Attorney, the solicitor acting can assess that person and make a determination if he or she understands the Power of Attorney. That’s an area for more in-depth analysis, but if the solicitor is in any real doubt, a doctor can be asked to examine and report in writing the state of the person’s capacity.
How long does it take to create and register a Power of Attorney?
The process of a solicitor taking instructions, meeting the client and drawing up the document for signature can be swift, especially if there is an urgency about the situation. Registering currently takes quite a few weeks once the Power of Attorney is sent to the Office of the Public Guardian Scotland as they are so busy with the many applications they have to do (remember what I said about the explosion in this area of law?). But if essential or there is an emergency, the OPG can be asked to expedite the application by pulling it out of the queue. We try not to abuse this by asking too many times!