Powers of Attorney and Guardianships

If you are out of the country on business or holiday, or if you feel that at some time in the future you may not wish or be able to deal with your day to day finances yourself then an appointment under a Power of Attorney is what you need to think about. By putting such an arrangement in place now this means that if you need assistance in the future the appointed person (or there can be more than one) can step in with the minimum of fuss. The assistance can be on a temporary or permanent basis, whichever you wish and you are free at any time to cancel the appointment. In addition the actions of the Attorney are overseen by a government body called the Public Guardian, so it is sensible for an Attorney to keep clear records of everything done on behalf of the granter as well as keeping any funds separate from his or her personal funds.

As well as appointing someone to deal with financial matters it is possible to appoint someone as a Welfare Attorney. This would allow this person (or more than one) to make decisions on matters to do with your personal wellbeing but only where you cannot make these decisions yourself. It could extend to decisions on where you might live or what medical treatment you might or might not receive. To a certain extent it formalises the Living Will which has been popular over the last number of years but in some ways the Living Will allows the writer of this to set out his or her wishes which may be of help to the Welfare Attorney. Whilst some see the role of the Living Will diminished through the availability of Welfare appointments we still see these as having an important role to play in clearly expressing the views and likely wishes of the granter, so that these can sit alongside a Welfare Power of Attorney.

If someone reaches the stage of being unable to deal with things themselves but a Power of Attorney is not in place and if there is any question over capacity (as with any legal document the person signing must understand the nature and extent of what is being granted) so that it is too late to put such an appointment in place, an application must be made to the Court for the appointment of a Guardian under the provisions of the Adults with Incapacity (Scotland) Act 2000. The Court appoints the applicant to look after the finances or welfare of the individual but in return the Guardian must report to the Court annually on the situation. The appointment process is time consuming and expensive when compared to completing a Power of Attorney document so we would strongly urge you to consider such an appointment rather than leaving things to fate in the future.

For advice on all aspects of private client work contact Kieran Fitzpatrick or Donald Skinner-Reid.

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