Scots law matters: Power of Attorney

In this the first in our new Scots law matters series, Ayr solicitor Claire Currie looks at Power of Attorney and explains why it is never too soon to think about the future.

"Both my parents are elderly and friends have suggested what we set up a power of attorney. I wondered what this is and how it works."

It is never too soon to think about the future and the best options for you and your family. Everyone should consider asking a solicitor to prepare a power of attorney. With some people their capacity to look after their affairs diminishes over time, and as they grow older. However sudden accidents and illness can happen to anyone at any time. No-one has the right to act on someone else’s behalf without their legal authority. This means that should anything happen to someone, their closest relatives or friends may need to go to court to get permission to make necessary and sometimes urgent decisions.

A power of attorney is a written document, empowering chosen person(s) to have legal authority to act and make decisions on a person’s behalf. A power of attorney that includes decisions about money and property is called a continuing power of attorney. A welfare power of attorney relates to future health or personal welfare decisions and these can be incorporated in the same document if appropriate. So it is important that the attorney is someone that you trust to make these decisions.

A person must have what is known as capacity to grant a power of attorney. This means the person is capable of understanding and explaining their wishes, and the consequences of appointing an attorney. Even if you have some doubts about the person’s capacity to give consent, it is still worth talking to a solicitor who can provide support and guidance on whether a power of attorney is appropriate. They can also support you to have a medical capacity assessment carried out where required. If the person does not have capacity, Guardianship may be required, which is a separate process.

As a power of attorney gives legal authority for a person, or people, to act on someone else’s behalf – and stays in force unless revoked by the person granting the power of attorney or death – it is important to take advice from a solicitor.

Whatever legal issue you are facing, a trusted Scottish solicitor can help. To find a solicitor in your area visit our online Find-a-solicitor tool at www.findasolicitor.org.uk.

This is not definitive legal advice and you should seek legal advice on your own particular circumstances.