You have the power

Colin Carr on the legal status of power of attorney

A Power of Attorney is a legal document in which an individual authorises one or more people, usually a family member or in rarer occasions a person acting on their behalf - such as a solicitor or an accountant - to make decisions and act in the best interests of the person granting the Attorney (simply called the grantor).

The Attorney is then authorised to manage financial assets, business interests, health and welfare issues. The essential rule is that the person granting the Attorney must have the mental capacity to instruct. The phrase ‘compos mentis’ is often used.

Types of Attorney

In Scotland, there are three types of Attorney.

The first one is Simple Power of Attorney. This is quite often created for a set time or even for a specific use, an example being the grantor going abroad for work, leisure or education for a prolonged period and they believe it is sensible to give authority to someone in Scotland to deal with their personal or business affairs in their absence. A spouse, partner, relative or grown-up child is usually appointed for personal matters, whereas a business colleague, solicitor or accountant is chosen to handle business matters.

These appointments usually have a specific time limit and thereafter the legal authority expires.

The second type of Attorney arrangement is the Continuing Power of Attorney which enables a person or persons to look after your personal or business affairs. Typically, this would grant the Attorney power buy and sell properties, claim benefits, make personal charitable contributions and generally deal with private matters on your behalf and with your best interests in mind.

The third type of Attorney is the Welfare Power of Attorney which can be arranged individually but is quite often combined with the Continuing Power of Attorney. This would enable you as the grantor to appoint one or more persons to make decisions about your health and welfare only including, for example, where you live. More importantly, the Attorney has the power to make medical decisions if you are ill, determine the care you receive and, in cases where the grantor is seriously ill, whether to resuscitate or not.

A power of Attorney is only valid if you have the capacity to instruct such an appointment; failing this, it can be triggered by a report from a medical practitioner that confirms you do not have the capacity to deal with your own affairs.

Over the years, I have been asked to attend a hospital where a spouse, partner or parent is terminally ill and the spouse or family member has been distressed when they discover that they have no legal authority to make decisions for their loved ones. Sadly, in these situations I have been unable to act as the individual is past the point of being able to instruct me. These scenarios starkly underline the importance of appointing a Power of Attorney at an early stage.

Who can grant an Attorney?

Anyone over sixteen can grant an Attorney as long as they have the mental capacity to do so. It is always sensible to complete an Attorney at an earlier age. For one thing, it avoids the more lengthy, complex and expensive route of going to court to be appointed as a guardian. The simple rule is arrange an Attorney when you are fit and able to do so as it will save your loved ones considerable work and cost in future years.

Who should be the Attorney?

With the Simple Temporary Attorney, the answer is usually quite straight forward. If, for example, you are going abroad for some time and you wish to ensure that someone you know and trust can deal with anything that arises in your absence, you should appoint a close family member. If you run a business, it is always sensible to appoint someone involved in that business that you trust.

With the Continuing and Welfare Attorney, it is usually the case that close members of your family will be appointed. This is logical as you would not wish people who you do not trust to deal with your finances and health. There is no obligation to appoint the same person to be both Continuing and Welfare Attorney. You should also try to appoint the most appropriate person for the role. For example, if one of your children is a health professional, it would make sense to appoint them as your Welfare Attorney. With complex business and financial matters, an accountant or solicitor would be an appropriate choice.

When an Attorney is appointed it is sensible to also appoint an alternative in case the Attorney resigns, dies or is incapacitated. It is possible to appoint more than one Attorney.

The right choice?

If you are appointed an Attorney, it is a serious and significant responsibility. The Attorney has a duty to carry out the grantor’s instructions and to make decisions in line with the grantor’s wishes or what they would reasonably believe to be their wishes. If an Attorney believes that they cannot carry out these duties, they should not accept the post as it can be time consuming and stressful. Before you appoint an Attorney you must be satisfied that they are happy to accept the responsibility.

Solicitor/ Medical certificate

The Continuing and Welfare Attorneys are only valid if they are registered with The Office of Public Guardian. Before the document can be registered, it must be accompanied by either a medical report confirming that the grantor has the capacity to instruct the Attorney or a certificate signed by a practising solicitor confirming that they are satisfied that the grantor has the capacity to appoint. In the vast majority of cases it is clear that the grantor knows exactly what they are doing and the process is fairly straight-forward. Sadly, in some cases it is clear that the grantor cannot give instruction. In those situations, a medical report may be required, for example where a client has early onset Alzheimer’s disease.

Urgent instruction

Typically, an application for a Power of Attorney takes approximately four months to process. However, there is an emergency application process that can allow the Attorney to be granted ten days from receipt of the application. If there is any urgency, it is important to act swiftly. The team at MacDonald Lynch can assist – please contact us as soon as possible If there appears to be an urgent instruction.

Contact us

If you would like to arrange a Power of Attorney, please call us on 0141 649 9552 or email hello@macdonaldlynch.co.uk

If you are elderly or unwell and unable to visit our office, our team will be happy to visit you at your home, hospital or hospice.