New forms of Power of Attorney introduced by the Adults with Incapacity (Scotland) Act 2000 have seen banks, building societies and other organisations refuse to accept instructions from family members in relation to the affairs of an incapable adult where there is no Power of Attorney in place. On incapacity this means that finances can be frozen and a jointly-owned home cannot be sold without going to Court. Since the 2000 Act, it has also been possible to appoint an Attorney to deal with welfare issues such as care and accommodation and in the absence of such documentation, it may not be possible for decisions to be taken, for example, by a wife in relation to the personal wellbeing of her husband and vice versa.
A Power of Attorney is a document which sets out who you want to deal with your affairs if you are unable to do so due to absence, ill health or mental incapacity. A Power of Attorney sets out the Attorney’s authority and can be drafted so as to include power to deal with personal care and wellbeing. Once signed, the document is registered with the Public Guardian who supervises the actions of Attorneys and can receive and investigate complaints in respect of their conduct.
Where there is no Power of Attorney and an individual is otherwise unable to give proper instructions with regard to the management of his/her affairs or welfare, then families can be required to have resort to the Courts for the appointment of a Guardian. The Court process can be time-consuming, expensive and distressing to the extent that sensitive issues are to some degree within the public domain.
You don’t need to be elderly or infirm to consider granting a Power of Attorney and younger people too can be affected by incapacity issues arising from sudden ill health or an accident.
In giving instructions regarding the preparation of a Will, many of
our clients take time to consider the advisability of a Power of
Attorney. The preparation of a Power of Attorney is a relatively
straightforward exercise and constitutes a cost-effective solution to
the difficulties which can arise from illness and incapacity.