Myth-busting powers of attorney

Today’s the very first, national power of attorney day.

This Health & Social Care Scotland-led campaign encourages members of the public to contact their solicitors to "start the conversation”.

Why is this important? And what common misconceptions about these documents do we need to address?

The reality is that every year thousands of people across Scotland lose capacity because of, for example, accidents, head injuries, strokes or a progressive illness. And in these situations, a power of attorney comes to the fore: it names someone who can act on your behalf, including paying bills, managing your welfare and making key decisions.

So an important first question for us all is: “If you ever were in that situation, who would you want— or trust — to step into those shoes?”

And that brings us on to our first power of attorney myth …

Myth one — surely my next-of-kin can automatically act for me without a power of attorney?

No. No-one has the right to act on your behalf without legal authority.

Without a power of attorney, your relatives or friends may have to apply to court for a guardianship to be able to make decisions for you, and that process can take months.

Myth two — aren’t powers of attorney just for older people?

The reality is that anyone can need one at any time: a power of attorney needs to be drafted when you’re well and can understand and explain your wishes.

Unfortunately, sudden accidents and illnesses can happen to anyone and it’s important that, whatever happens, plans are in place to make sure responsibilities are taken care of.

If we, for example, take the responsibilities of the so-called ‘sandwich generation’ these will include caring for both sick, disabled or older relatives as well as children, on top of looking after at least one household, as well as any pets.

Myth three ­— I have a power of attorney from elsewhere, so I don’t need one for Scotland

Don't assume your power of attorney will work as you’d expect it to in another country. Even between Scotland and England there are differences that call for a separate document.

The bottom line is that if you live here, it’s worth putting a Scottish power of attorney in place.

Deciding what to do in the future should you be incapacitated or unable to make your own decisions isn’t easy, often — understandably — we don’t even want to think about what might happen, or even raise the subject with loved ones.

That makes getting independent advice from your solicitor all the more important.

Dara Kinloch

Senior solicitor Dara is an experienced private client practitioner, notary public and member of the Society of Trust and Estate Practitioners (STEP). She is also an associate member of Solicitors for the Elderly (SFE), focusing on the particular issues and needs facing elderly clients.

Posted, 20 November 2019 by Dara Kinloch
Categories: Insights | Private client