With longer life expectancy and growing rates of dementia, more people are becoming aware of the need to make a Power of Attorney (PoA).
This which enables you to formally choose one or more individuals to look after your finances and your welfare if you become unable to make decisions about these matters for yourself.
However, there are some assumptions about who needs a Power of Attorney which definitely need to be challenged.
It is not only older people who can become incapable of looking after their affairs and sadly, if a severe illness strikes or accident occurs, many people mistakenly think that they would just automatically be able to act on behalf of a spouse or business partner.
Unless the person has made a PoA stating this instruction, it can cause distress to a spouse who suddenly finds they have no access to money held in accounts solely in the name of their husband or wife to pay bills, school fees or care for their loved one.
It can also cause very significant problems for a small business, partnership or sole trader if the means of accessing funds is lost without warning. Of course, this will have an enormous impact on cashflow and the ability to pay employees and creditors.
Where there is no Power of Attorney in place and the person is no longer mentally capable of making one, a lengthy and potentially expensive application has to be made to the Sheriff Court to have a Guardian appointed.
In contrast, making a Power of Attorney in Scotland is a straightforward and relatively inexpensive process which also has built-in safeguards to protect the person who makes it.
A doctor or solicitor needs to countersign the application to confirm that the person understands the implications of making a PoA, the extent of the powers being granted and that they are not being pressured into putting this document in place. Powers of Attorney of this type are also registered with the Office of the Public Guardian (OPG) in Falkirk.
This means that you can choose exactly who you want to look after your affairs, rather than have a Court decide who should act as your Guardian.
Moreover, it is a document which can be amended or revoked entirely to reflect changing life circumstances including divorce, bereavement, meeting a new partner, children reaching adulthood or people moving to the other side of the world.
If Attorneys are required to act, they are essentially left to get on with the job by the OPG. However, the OPG has considerable investigative powers if anyone contacts them with concerns about how an Attorney is acting.
Above all, I would advise that having a Power of Attorney in place can save considerable distress to families or small businesses if something unfortunate and unforeseen happens. If a Power of Attorney has been previous signed, the formal paperwork is in place, your wishes are known, and your Attorney can start dealing with your affairs for you without any delay.
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