Q: I am in my mid-30s and moving to Australia for four years next month. My brother and sister have both asked me to get a power of attorney. I am young and healthy, so I don’t think I need one. Is it really necessary?
A: Powers of attorney are generally granted to cover two situations. The first is for convenience in dealing with your personal affairs, for example, if you are absent abroad. The second is to cover the longer-term possibility that you may lose mental capacity. The suggestion may have been made to you for the first reason, but you should also really take this opportunity to cover the second. Have a think about how your affairs would be handled if a car accident or some other unexpected event tragically rendered you incapable of making decisions.
The Adults with Incapacity (Scotland) Act 2000 introduced long-term powers of attorney in Scotland in their current form. To be effective, a deed of this type must first be registered with the Office of the Public Guardian.
There are two categories of powers in these deeds – continuing and welfare.
Continuing powers cover finance and property. Once granted, and the deed registered, they can be used straight away. They give the attorney (or attorneys) to whom the powers have been granted the ability to deal with your personal affairs, whether or not you retain mental capacity. For example, if you decide to sell a property in Scotland, or had a bank account to be operated, or investments to be bought and sold, your attorney could act for you. This could well prove more economical and practical for you, and can be done under your direction and instruction. However, you should be aware that it is possible for the attorney to act without your instruction too, so it is vital that you choose your attorneys after careful consideration.
Welfare powers are granted to enable your attorneys to make decisions regarding care, medical matters, and your general welfare. As you would expect, these powers only come into play if it is determined that you lack the necessary mental capacity yourself.
The two types of power can be contained in separate deeds, or combined in a single deed. When the power of attorney is signed it must also be certified by a practising Scottish solicitor, advocate, or registered medical practitioner. This acts as a safeguard to ensure that the granter understands the nature of the powers being granted, and is not being unduly influenced or coerced. There are special arrangements required if the powers in these deeds are to be revoked.
Although these long-term powers would be recommended, if you really do only want to provide for a shorter term, you could consider the more traditional form of power of attorney, which would fall if you were subsequently to lose mental capacity. These deeds are simpler to execute, as your capacity at the time of granting does not need to be certified, nor does it have to be registered with the Office of the Public Guardian.
Overall, you should consider the long term position, as well as short term expediency. Before making any decision, you should take legal advice to ensure the decisions made are appropriate to your particular circumstances.
• Dale Ross is a senior associate in the private client & financial services department at HBJ Gateley.
If you have a question you need answered, write to Jeff Salway, c/o The Scotsman, 108 Holyrood Road, Edinburgh EH8 8AS or email: email@example.com. The above is for general purposes only and is not tailored for individual use. It does not constitute legal, financial or investment advice on any particular matter and must not be treated as a substitute for specific advice. No action should be taken in reliance of the information given. The Scotsman Publications Ltd and HBJ Gateley accept no liability on the basis of this article.