Powers of Attorney - questions and answers

What is a Power of Attorney?

A Power of Attorney is a way of giving someone else permission to make decisions about your money and property as well as your health and personal welfare. It usually sets out what you would want to happen in the future if you could no longer look after your own affairs.

Who is the Attorney?

A Power of Attorney is a written document usually drawn up by a solicitor, in which you name the person – the attorney – you would like to help make decisions and take actions on your behalf. The attorney should be someone you trust, such as a family member or friend, or your solicitor.

Are there different types of Power of Attorney?

Yes, a Power of Attorney can include decisions about your money and property. This is called a Continuing Power of Attorney. A Welfare Power of Attorney relates to your future health or personal welfare. Different attorneys can be appointed for each type of power of attorney. A Continuing Power of Attorney can be used to help with financial matters before you are incapable but decisions about your welfare cannot be made until you are no longer able to do so yourself.

Is it the same as a Guardianship?

They both fulfil the same function, but the differences are that a Power of Attorney can only be granted from an individual who can understand and explain their wishes on their own behalf whereas a Guardianship applies when a person does not have capacity to act and make decisions on their own behalf. A Guardianship is applied for through courts, whereas a Power of Attorney is drawn up by your solicitor. A Guardianship is for a fixed period of time, whereas a Power of Attorney stays in force unless revoked by the person granting the Power of Attorney or death.

Who needs a Power of Attorney?

Everyone should consider asking a solicitor to prepare a Power of Attorney. With some people their capacity to look after their affairs is impaired gradually – as they grow older. But sudden accidents and illnesses can happen to anyone, so it isn’t just for older people.

What happens without a Power of Attorney?

As no one has the right to act on your behalf without your legal authority, it would be a timely and costly process for your family or friends because they may have to go to court to get permission to make decisions for you.

How much does it cost?

Solicitors and doctors can charge a fee for helping draw up a Power of Attorney and the accompanying Certificate of Capacity, which confirms that the person understands what they are doing. The Power of Attorney must be registered with The Office of The Public Guardian Scotland before it can be used. A fee is charged for this service, currently £74 (correct at 31 January 2017).

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