The first in our Must Do series for over 50's - setting up a Power of Attorney

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We Scots look after our ‘ain’ so they say. However, we constantly see a different side to Scots which is really puzzling. In reality it’s often the case that we really don’t look after our own, at least not in a legal sense. Many people fail to adequately prepare for adverse family events such as illness or death. Arguably, we are rotten at preparing for the future.

The good news is that it is very simple to change things for the better for all families where severe illness or death strikes a family member. It just needs a little thought and means doing some simple things now, before anything happens that means you can no longer prepare. We believe everyone over 50, and in fact anyone should think about our three must do’s: Power of Attorney, Advance Directive and Making a Will. 

The first must do – appoint a trusted friend or relative as your Attorney

Around 40% of us will have a period of incapacity in our lives. Incapacity with no POA is a family disaster – nobody can do anything.

There are several myths surrounding incapacity which often cause people to believe they do not need to do a Power of Attorney.  The biggest myth of them all; I don’t need a POA because my spouse can automatically do everything.

  • My spouse automatically has the right to access my bank account - no they don’t, not unless it is set up beforehand.
  • My spouse automatically gets my pension - again, no they do not, not unless it is set up beforehand.
  • My spouse has the power to sell jointly owned property to pay for care - no they can’t sell it if one owner is incapacitated with no attorney.
  • I have made a will and appointed executors they can do things for me - no they can’t, your executors have no powers until your death.

The truth is that no one has immediate power to do anything. This means that should you lose capacity everything is in limbo and often cannot be sorted for several months. A court action may even be needed to appoint a guardian where you lose capacity with no one appointed as your attorney.

A court action is additional stress on top of all the stress that comes with a loved one losing capacity. It is time consuming, expensive - costing anywhere between 4-5K pounds with annual management expenses - and it is an extremely intrusive process involving medics, lawyers and social workers AND that is all before you even get to court.  

In short, incapacity without a POA is a complete nightmare.

What are the benefits of a POA?

  • You appoint your attorney. It is someone that you know and trust. It’s the person you have chosen and they can act immediately.
  • All matters can be dealt with efficiently and easily. Your POA grants your attorney both welfare and financial powers.
  • Once the POA is in place there are no additional costs - it's done. You can put it to the back of your mind but take peace knowing that it is sorted.
  • We view POA like insurance policies you might never need it but if you do it’s so much better to have.
  • Appointing an attorney means that everything is kept within your family. There is no need to involve outsiders and therefore there is no additional distress.

So what does a POA involve?

It’s actually really easy to set up. It involves two visits to a solicitor and that is all. A standard Power of Attorney will grant your attorney power to make both financial and welfare decisions.

However, I have to point out that granting a Power of Attorney does not mean that powers are being given away. There is a common presumption that an attorney can take over your affairs. This is not true. Your attorney only has the authority to do things for you when you can’t. You choose someone you trust not to act against your best interests - usually a family member but not always, it could be a close friend.

Anyone appointed as an attorney must follow 5 guiding principles:

  • They must act for your benefit only.
  • Any action must involve the most limited intervention.
  • Your attorney should follow your known wishes.
  • They should take account of carers and others wishes.
  • They should encourage and involve the adult.

While in the majority of cases POA work very well, where there are concerns about an attorney there are safeguards in place. The Office of the Public Guardian can become involved to ensure the attorney is not acting outside of their power. It really is very safe.

Granting a POA is not giving up or giving away power. It simply authorises the use of power in a limited way and in certain circumstances only.

Find out more about our fixed cost Power of Attorney service.

Jacquie MacDonald

Head of Corporate Development