Your future in your hands

As a campaign by Glasgow City Health & Social Care Partnership encourages more people to apply for Power of Attorney, partner Robert Telfer explains its legal importance.

A Power of Attorney (PoA) is a legal document which allows you to appoint someone to manage both your financial and welfare affairs in the event that you lose capacity.

It’s a vital form of legal protection, particularly as we get older. If you do not have a PoA and you lose capacity, no one has the legal authority to act on your behalf. Instead, anyone wishing to act on your behalf must obtain a Guardianship. This involves a protracted court process and can take months to secure.

It is important to point out that a PoA is granted by an individual. Often law firms receive calls from people looking to ‘get’ a PoA for their relative or friend. You do not ‘get’ a Power of Attorney for someone. Only a person who has capacity can grant a Power of Attorney. When instructing a solicitor to draft a PoA, there are several points to consider – not least, how to choose a suitable Attorney(s) and how decisions should be taken on your behalf.

Choosing your Attorney

Essentially, you can appoint anyone – a family member, friend or solicitor. You must appoint someone you trust and who will take responsibility for you. You can appoint more than one Attorney. However, the more you appoint, the greater potential for disagreement. Attorneys are obliged to involve relevant others before reaching decisions. Attorneys should not overlook other family members simply because they are not named Attorneys.

I have been involved in several cases where Attorneys and other family members have fallen out over the sale of the family home and/or the management of the grantor’s financial resources. The trigger for disputes is generally lack of communication on the part of the Attorney and the feeling by other family members that they are being excluded from important decisions.

But Attorneys do not always have to defer to the opinions and requests of other family members when making decisions about your finances and welfare. Indeed, it may be that you as a grantor do not wish certain family members to be involved at all.

Sandra McDonald, the former Public Guardian and number one authority on all matters relating to Adults with Incapacity states that:

‘To fulfil the role of Attorney successfully requires a cordial relationship with other family members. You may wish to think carefully about who is the best person for you to appoint if you sense that your family members may have a dispute over how things are administered.’

To avoid family disputes, it’s important that you give your Attorney prior instruction about how you wish your affairs to be managed and who should be consulted. These instructions could be included in a Statement of Wishes and Feelings (see below) or you could simply have a conversation with your Attorney.

If you are nominating more than one Attorney, one could be appointed to deal with your finances whilst the other deals with your welfare. Alternatively, each appointed Attorney could fulfil both roles. The decision is entirely yours. If you have more than one Attorney, you can decide if you wish them to make all decisions jointly or if you are happy for them to make a decision on behalf of all Attorneys. This is a personal preference but allowing Attorneys to operate independently of each other can offer more flexibility – especially if they live some distance apart or have other commitments. Should you wish your Attorneys to be able to operate independently of each other, you should be satisfied that they will consult with the other Attorneys before reaching decisions.

How should Attorneys reach decisions?

Your Attorney is required to respect a person’s rights, will and preferences. It is important for an Attorney to consider the grantor’s views and not substitute their own because they believe them to be in the grantor’s best interests or because it simply makes life easier for everyone else concerned. Generally solicitors recommend appointing someone who knows you well and who has a good idea of how you would wish your finances to be managed and what type of care you would like to receive.

When drafting a PoA, you may also wish to draw up a Statement of Wishes and Feelings. This is not a legally binding document but it sets out your views on what you would wish to happen in the event of you losing capacity. This is not the same as a living will which offers direction on how you wish to be cared for in the final stages of life.

A Statement of Wishes and Feelings can include factual information such as the name and address of your doctor, dentist, opticians and where you bank. It can also include preferences such as religious beliefs, dietary requirements, your favourite foods, what you like to wear, your favourite music and television programs. You could state how you wish your money to be invested and what should happen to your property in the event that you have to go into care. This is not an exhaustive list. Anything that is important to you and which you wish your Attorney to know can be included. It may be impractical for your Attorney to follow every instruction to the letter – and, in fact, they are not required to defer to and enact every one of your wishes - but clear instructions should lead to the more successful operation of the PoA and a better quality of life for you.

When is a PoA activated?

As the grantor, it is advisable to have the Power of Attorney registered with the Office of the Public Guardian as soon as possible so that it can be used whenever it is needed. Post registration, it can lie dormant for years and may not be required to be used at all. You may never lose capacity during your lifetime.

Once your Power of Attorney is signed and registered, your Attorney can start assisting you with your financial and property affairs immediately, under your instruction, but they cannot make any decisions about welfare matters unless or until you lack capacity.

When drafting your Power of Attorney, you can decide whether you wish your Attorney to make their own decision as to whether you lack capacity. Alternatively, some clients like to stipulate that the Power of Attorney is only activated due to loss of mental capacity and/or physical disability, as certified by a suitably qualified medical practitioner, and only in that event. This provides clients with peace of mind that decisions will only be made on their behalf when absolutely necessary and under the recommendation of a suitably qualified individual.

A final word

A Power of Attorney gives another person the power to make decisions on your behalf should you lose capacity. When instructing a solicitor to draft a Power of Attorney, the key focus should be on choosing the right person or people to fulfil the role. It is important to note that you can always change your mind. Up until the point of losing capacity, you can revoke the POA in its entirety, add or remove an Attorney. You're in control. You should never feel pressurised into granting a Power of Attorney and you should only grant one if you feel it is right for you.

If you wish to discuss a Power of Attorney further, why not call the team at MacDonald Lynch on 0141 649 9552 for some initial advice.