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When is the right time to draw up a Power of Attorney?

25 October 2021 Category: Private Client

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A Power of Attorney is something “old people” need. We hear this repeatedly, but it is simply not true. A Power of Attorney is a most useful document to help you manage your affairs, whatever your age. If you have property and assets, we think it’s time to draw up a Power of Attorney.

The reason for this is that you don’t need to be old or infirm to need a Power of Attorney. You might have an accident or an illness at any age that prevents you from looking after your own affairs. If you don’t have a Power of Attorney in place, you may need a Guardianship order. This can prove to be stressful, time-consuming, and expensive. If you do become incapacitated for whatever reason and are unable to look after your own affairs, a Power of Attorney becomes indispensable.

A common myth about Powers of Attorney

If I grant a Power of Attorney, I won’t be able to make my own decisions or look after my own affairs. This is simply untrue. Many people grant a Power of Attorney and continue with their lives as usual.

A traditional general Power of Attorney is something some people grant in favour of a family member, a trusted friend or professional where they need someone to look after their interests when they cannot do that. This type of Power of Attorney is used when, for instance, the person granting it works or lives abroad for long periods of time and needs someone in Scotland to deal with their affairs. There is nothing to stop the granter continuing to deal with their affairs whilst their Attorney can also look after general or specific things for them.

The problem with a general Power of Attorney is that if the granter becomes incapacitated, the Power of Attorney is no longer valid.

Two “new” Powers of Attorney

In order to address this issue, the Adults with Incapacity (Scotland) Act 2000 introduced two new types of Power of Attorney. These are a Welfare Power of Attorney and a Continuing Power of Attorney. Both of these types of Power of Attorney continue in effect even if the granter has become incapacitated.

A Welfare Power of Attorney, as the name suggests, allows the Attorney to deal with any aspect of the granter’s care or wellbeing. A Continuing Power of Attorney allows the Attorney to deal with the granter’s financial affairs and, again, this type of Power of Attorney survives the granter becoming incapacitated.

Frequently, these two types of Power of Attorney are combined into a single Combined Welfare and Continuing Power of Attorney to enable the Attorney to deal with both financial and welfare aspects of the granter’s life, if they are unable to do so because of incapacity.

So, when is the right time to draw up a Power of Attorney?

We would again emphasise that even if you grant one of these Powers of Attorney, you can continue to deal with your day-to-day affairs. The Power of Attorney, however, gives you the flexibility to have someone your trust deal with some of these for you. Many clients enjoy the convenience of having a Power of Attorney and happily live their lives in control of their own affairs.

A Power of Attorney is both a convenience and an insurance policy - convenient if you want someone to do something for you and an insurance policy just in case you do become incapacitated.

What this really means is that the right time to draw up a Power of Attorney is probably right now!

Contact our Power of Attorney Lawyers

If you would like to discuss preparing a Power of Attorney, please get in touch and one of our experienced private client lawyers would be happy to help you.

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