Power of Attorney

There’s no substitute for the peace of mind that comes with knowing you’re prepared for the future. One of the best ways to do this is to have a Power of Attorney in place. A Power of Attorney is a written, legal document that gives someone else the authority to make decisions about various matters for you, if you lose the capacity to act on your own behalf.

Caring for Adults – Powers of Attorney Legal Advice Scotland

Unfortunately, many of us lose our capacity to act on our own behalf as we age. Mental conditions such as Alzheimer’s or dementia can afflict us over time. In other cases, we lose capacity as a result of a car accident or other unfortunate incident. When this happens, there is no automatic right for your spouse, partner, parent or child to make decisions on your behalf. As such, no matter what age you are, you should have in place a Power of Attorney.

A Power of Attorney is given by the ‘granter’ in favour of the ‘attorney’ – the person to whom power is given. Powers of Attorney are flexible instruments and it is up to you how much or how little power you grant to your attorney.

The law relating to Powers of Attorney is found in the Adults with Incapacity (Scotland) Act 2000. This governs how Powers of Attorney are created and outlines the legal requirements which must be met in order for a Power of Attorney to be valid. Once drafted, a Power of Attorney must be registered with the Office of the Public Guardian to have effect.

You are, of course, free to choose who you wish to act as your attorney. In most cases, a close family member is chosen to act because they know you and your particular circumstances. You can appoint more than one attorney and can appoint a substitute attorney as a precaution, should your original attorney be unable to act for any reason. You can also stipulate when the powers come into force, such as when your capacity becomes impaired (usually this is based on the opinion of a medical practitioner).

Continuing and Welfare Powers of Attorney

You can also appoint different attorneys to deal with different aspects of your care. A Power of Attorney which deals with finances and property is known as a Continuing Power of Attorney. A Power of Attorney which deals with your health and/or care is known as a Welfare Power of Attorney.

Welfare powers can only be used once the granter has become incapable. Most commonly, these powers relate to decisions about nursing and care homes etc.
Macnairs + Wilson can advise you on the most appropriate Power of Attorney for your particular circumstances.

What if Someone No Longer has Capacity to Grant a Power of Attorney?

In some cases, it may be too late to grant a Power of Attorney. The person requiring care or assistance may already have lost the capacity to act on their own behalf. This can happen after an accident or as a result of the sudden onset of mental illness. In these types of situation, there are options available to allow you to deal with that person’s affairs.

Intervention Orders

When an adult no longer has the capacity to act on their own behalf or to put in place a Power of Attorney, then a person with an interest in their affairs can nominate themselves to act on their behalf. In this situation, an application is made to the court to be granted the power to act on their behalf in the form of ‘intervention orders’ or guardianship orders’.

Usually, the person seeking the power is a family member but it may also be a friend or professional. Under these powers, the court can grant authority to deal with the any or all aspects of the individual’s care and welfare including their property, finance, personal welfare and health.

The application to the court must include two medical reports and, if the application relates to personal care, a report from the Chief Social Worker, certifying that the applicant is suitable. If the order sought relates to property and finances, then a report must also be obtained from an individual with knowledge of the situation. Your application must be submitted to the court within 30 days of these reports being prepared.

Intervention orders are appropriate where the decision to be taken is a ‘one-off’ or the power is only to be exercised for a short period of time. Typical situations of this type involve realising assets, paying bills, transferring money and so on.

Intervention orders can only be sought by one person. That is to say, that only one individual can become an ‘intervener’. The application is made to the sheriff court in which the person over whom the order is sought lives. You must demonstrate to the court why the order is necessary and how it will benefit the individual concerned. The Sheriff hearing the application must also be satisfied that there is no other means of dealing with the issue at hand.

With an intervention order, the order only lasts until the act for which the power is sought has been carried out. Interveners are required to report to the Office of the Public Guardian and when the action has been completed, and evidence must be submitted.

Power of Attorney Solicitors in Glasgow and Paisley, Scotland

If you’d like to discuss your circumstances and the possibility of appointing a power of attorney, call us on 0141 887 5181 for our Paisley branch, 0141 551 8185 for our Glasgow branch or write to use via our online contact form.

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Paisley: 0141 887 5181

Glasgow: 0141 551 8185