Murray Beith Murray LLP is a leading Scottish private client law firm.
For 175 years we have specialised in meeting the legal, financial and administrative needs of individuals and families, family trusts, charities and private companies.
Murray Beith Murray LLP is a leading Scottish private client law firm.
For 175 years we have specialised in meeting the legal, financial and administrative needs of individuals and families, family trusts, charities and private companies.
Many people go through life without putting a Power of Attorney in place. If you are fortunate to be in a position where you may never require someone to make decisions on your behalf when you become unable to, this may not be a concern. However, if you find yourself in a situation where you can no longer look after your own affairs, the lack of a Power of Attorney can become time consuming and expensive.
If you suffer from an illness or have an accident that makes you incapable of looking after your own affairs, it can be problematic if you have not drawn up a Power of Attorney. If you do become incapacitated to this extent, it will then be too late to draw up a Power of Attorney.
If you need someone to make decisions on your behalf or to handle your affairs when a Power of Attorney is not in place, usually the only option is to have a guardian appointed. This involves making an application to the Sheriff Court supported by medical and, perhaps, social work reports to allow the Sheriff to decide whether a guardian should be appointed and what powers that guardian should have. That process can take months and come at considerable cost.
When an adult is incapacitated and can no longer look after their affairs, someone usually needs to deal with their affairs for them. That individual may have to deal with all or some of the following:
If the incapacitated adult has not drawn up a Power of Attorney, their family may find it extremely difficult, if not impossible, to deal with all of these matters. Almost every interaction with businesses, local authorities or financial institutions will require authority from the incapacitated adult. Without that authority, whilst the organisation the family are trying to deal with may be sympathetic, they will only act on instructions that are supported by the necessary authority.
In the absence of a Power of Attorney, the likely authority is a guardianship appointment made by a Court. Family members may find themselves excluded from meetings set up to deal with the welfare of the incapacitated adult. This can add to the frustration and feeling of helplessness.
One of the key advantages of creating a Power of Attorney is that it can be drawn up long before there is any element of incapacity. In fact, it might never be needed. It works a little bit like an insurance policy – there in case you need it.
Powers of Attorney are usually drafted in such a way so that the financial powers can come into effect before an adult becomes incapacitated (for example, a mentally capable adult may no longer want to look after their own financial affairs and instead pass this responsibility on to their chosen attorneys). In contrast, welfare powers will only come into effect once the adult has been determined to be incapable of making decisions, often stipulating that such a determination must be made by one or two medical practitioners.
Accordingly, if you become incapacitated to the extent that you can no longer look after your own affairs, a properly prepared Welfare and Financial Power of Attorney will allow your Attorney to deal with your affairs and make the kinds of decisions that you would make if you were able to make them. Furthermore, a well drafted Financial Power of Attorney can give your attorneys authority to manage your financial affairs even while you have capacity. This can prove useful if you are away from home and issues arise that require your authorisation or simply if you wish for your attorneys to assist you in managing your financial affairs more generally. Of course, your attorneys must always insure they are enacting your wishes whilst doing so.
In terms of cost and time, drawing up a Power of Attorney is relatively inexpensive compared with the costs of a guardianship application to the Courts and it will certainly take much less time.
Adam Swayne is a solicitor within our Asset Protection Group and specialises in estate planning and Wills. If this article has raised any questions or you would like to discuss any issues covered here, then please complete our contact form, or call us on 0131 225 1200 to speak to one of our specialist estate planning lawyers.
Murray Beith Murray was established in 1849 as advisors for generations of clients, committed to our values of integrity, expertise and trust. This aim and these values continue to this day, as does our commitment to be here when you need us.
