Do you have a Power of Attorney?

Do you need one?
What is it?

A Power of Attorney can be a very valuable and useful document. When you sign it, you authorise someone else to do certain things for you, in relation to financial matters. You choose how much you allow your Attorney to do. Any Power of Attorney in Scotland that has been signed in 1991 or after remains effective even if the person signing is subsequently becomes mentally incapable.

A Power of Attorney may remain effective after someone subsequently becomes mentally incapable (and that is an important reason for doing it in the first place). It will incorporate a clause allowing it to be used in this way and a certificate from a Solicitor confirming that the person understands the document and its effect. It will then be registered with a government official called the Public Guardian who can exercise some control over how an Attorney acts. The Attorney is legally required to act in the best interests of the person who has signed the document.

Why should you consider having one.....

• It may be simply a matter of convenience, because you want someone else to deal with matters, for example while you are abroad.
• If you become mentally incapable and cannot deal with financial matters such as pensions, paying bills, investments, tax, and bank accounts your assets would be “frozen”. The court would appoint a guardian to look after your affairs . This is very cumbersome, and involves a lot of legal and accounting technicalities, and can be quite expensive. Physical incapacity arising from accident or injury can lead to the same difficulties.
• A Power of Attorney is a simple and effective procedure to deal with what can be a serious problem.
• You may also have what is called a Welfare Power of Attorney. This cannot take effect until you become incapacitated, and allows the Welfare Attorney (usually a family member) to decide and arrange for all aspects of personal welfare. This can include such things as where you will live, what personal care should be in place, what you will do, and even if necessary what you will eat or wear. It would also take into account social and cultural activities. The Welfare Attorney may consent to medical treatment.

Who should be an Attorney?

• Someone whom you can rely on. It can be a member of your family, or a solicitor, or sometimes both acting together.

What other effects does it have?

• It takes nothing away from your own right to deal with your own money (or your personal welfare, in the case of a Welfare Power). It merely gives rights to another person.
• The actions of the Attorney are binding on you and he or she must give you full details of everything done for you. You can withdraw the power at any time in writing.

A Power of Attorney has to be entered into carefully, with proper advice. If you wish to ask us for some help, please call to arrange a meeting.

Whether you are looking at a Will or a Power of Attorney, we can give you advice that takes account of Service Life and its problems. For some people, their circumstances may require them to obtain specialist advice under English Law, and we can help with obtaining this.

When making a Will you should make sure that you are up-to-date in knowing what will be available to your family if you die while serving. The information that you have may not be up-to-date! You should also make sure that you know where money from life insurance, etc., will go on your death. It might not be going where you expected.

Contact: Johnston Clark, Scott Williamson, Donald Gordon, Douglas Sneddon, Petra Grunenberg, Steve Swinton