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A Guide To a Power of Attorney

Many people believe that having a Power of Attorney is the same as having a written will, but this is not the case. A power of attorney is actually the opposite of having a will, for a number of different reasons. A will is a document that protects your beneficiaries’ interests after you have passed away, whereas a power of attorney protects your own interests until you can no longer do so. Essentially, a power of attorney is a legal document that allows someone else to make decisions for you should you lose capacity, or to act on your behalf if you physically can’t attend to them or your out of the country.


In terms of who can be Power of Attorney, this can be a family member, a friend or even a professional such as a Solicitor. Once the Power of Attorney has been granted and the document registered with the Office of the Public Guardians office Scotland then the document is live. We would strongly advise you to retain the document until such times as you need the document to be used. We would suggest, though it’s not absolutely the case, that you have more than one Attorney. This means that if your first choice becomes ill themselves then you have someone else who can assist you.


When it comes to setting up a power of attorney, there are two parts involved in a POA. Although you can have just one part, it is usually best to have both parts included in your document. Let’s take a closer look at the different parts of the power of attorney.


Financial Powers

Having financial powers in your POA document means that your financial affairs can be dealt with by your Attorney. This includes dealing with your banks, your house, and your benefits. It should be noted that the POA will allow the document to be used when you have lost mental capacity. Mental capacity refers to having the ability to make or communicate specific decisions at the time that they need to be made. To have mental capacity you must understand and be aware of the decision that you need to make, why you need to make it, and what the outcome of your decision is likely to be like. However, the document can also be used when you retain capacity and if you need cover for a temporary period. For example, if you are staying in hospital for a period of time or are on holiday and need a short period of cover.


Welfare Powers

These powers cover such things as speaking to doctors, making decisions regarding your health and even deciding where you should live, for example if living at home is no longer suitable. Again, these can be used on a temporary basis, such as during times of COVID when appointments with doctors are held over the telephone, an elderly parent may not be able to hear what is being said so the Attorney can make that phone call for them.

You should remember that if you lose your mental capacity temporarily, no one has the ability to assist you in dealing with financial matters or making welfare decisions. Families are often left in limbo and are required to apply to the Court for Guardianship or Intervention Orders, which can take many months to obtain.

Get in touch

If you are looking for advice or assistance when creating a power of attorney document, make sure to get in touch with MM Legal today. A member of our team will discuss your needs with you, who of your family or friends you trust to act on your behalf should you not be able to do and will arrange for a draft power of attorney document to be sent to you, so make sure to get in touch!