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Creating a Power of Attorney: Why You Need a Solicitor

A Power of Attorney is a legal document that allows you (the ‘Granter’) to nominate someone (the ‘Attorney’) to manage your affairs. Unlike Guardianship Orders, which are granted by a court in favour of someone else when you are deemed to lack ‘capacity’, the ability to manage your own affairs, you can grant a Power of Attorney while you have capacity. Whereas the Guardianship order is a complicated reaction to an existing problem, the Power of Attorney is a relatively straightforward pre-emptive strike, reducing the impact of the problem before it arises.

Creating a Power of Attorney therefore provides an effective means of safeguarding your interests against any future event when you are deemed to lack capacity, for example, being diagnosed with Dementia. Creating a Power of Attorney is a relatively painless matter which eliminates the need for the lengthy legal process which is part and parcel of Guardianship applications. A validly created Power of Attorney provides much needed assurance for any individual experiencing declining health, or for any individual simply seeking the comforting knowledge that future needs have already been provided for.

The Power of Attorney confers wide-ranging powers to the individual or individuals you nominate to be Attorney or Attorneys. There are generally two types of Power of Attorney:

1) The Continuing Power of Attorney, which can grant the nominee (‘Continuing Attorney’) powers to manage your property and financial affairs, for example, selling your home or managing your bank accounts. The Continuing Power of Attorney is effective from the moment the Office of the Public Guardian Scotland (the public body responsible for registering and monitoring the exercise of Power of Attorney instruments) registers the document. The Continuing Power of Attorney is effective from the moment of registration regardless of whether the Granter has capacity to make his/her own financial decisions.

2) The Welfare Power of Attorney, which can grant the nominee (‘Welfare Attorney’) powers to manage your ongoing welfare needs and health needs, for example, making healthcare decisions on your behalf, or deciding where you should live. Even when registered, the Welfare Attorney can only make decisions on matters which the Granter is no longer capable of deciding on.

3) Both types can be merged into a single Combined Power of Attorney, granting financial and welfare powers to the Attorney.

Though the extent of the powers granted are dependent on your wishes (and how the document is drafted), granting a Power of Attorney inevitably amounts to a very significant transfer of power

to the nominated Attorney. You must have complete trust and confidence in the Attorney to ensure that your interests are preserved, rather than endangered. The decision to create a Power of Attorney should never be taken lightly; you should always consult a solicitor to ensure that you are making an informed decision, and crucially, that you are granting powers only to the extent that this coincides with your wishes.

Here are some of the key reasons you should consult a solicitor when creating a Power of Attorney.

1) QUALITY : Scottish solicitors are governed by the Law Society of Scotland. You can be sure that the solicitor you engage is held to the highest standards of conduct and quality of work

2) CORRECT CHOICES : A solicitor can bring an experienced outside perspective. They can help you to make the correct choices in terms of the powers you wish to grant and who you wish to grant these to.

3) SOLICITOR-CLIENT RELATIONSHIP : Engaging a solicitor confers all of the benefits of a solicitor-client relationship. The solicitor will maintain complete confidentiality and represent your interests alone, and not the interests of, for example, other family members or nominated Attorneys.

4) MEMBER OF ‘PRESCRIBED CLASS ’: sections 15(3)(c) and 16(3)(c) of the Adults With Incapacity (Scotland) Act 2000 (or ‘AWISA’, the legislation governing Power of Attorney) provides that a solicitor, like a doctor, is a person able to assess your capacity and whether you are subject to undue influence. Your solicitor will ensure at the earliest stage that you are able and willing to create a Power of Attorney.

5) VALIDITY : Section 18 of AWISA provides that a Power of Attorney not validly created will have no effect when the Granter lacks capacity. A solicitor will use their legal expertise and experience to ensure that your Power of Attorney is validly created.

6) PEACE OF MIND : Simply put, engaging a solicitor can take the stress away. Your involvement in the process is reduced to a one-one meeting with your solicitor to discuss your circumstances, receive advice and give instructions. Following this, you need meet with a solicitor or doctor just one more time to sign the Power of Attorney paperwork prepared for you. Your solicitor will take care of everything, including the process of having the Power of Attorney registered.

If you would like to discuss creating a Power of Attorney, please feel free to contact McCarthy Law on 0141 337 6678, or via e-mail:

If you would like to learn more about Power of Attorney, please visit the website of the Office of the Public Guardian Scotland:

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