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Most people will have a Will, or have thought about making a Will at some point.  We want to make sure our estate is dealt with as we wish when we die, and that matters are made as easy as possible for our nearest and dearest.

However, not all of us will have considered what will happen to us, to our estate and our affairs if we are still alive, but not able to make or communicate our wishes and decisions for ourselves.

Your Will deals with your estate when you die, but a Power of Attorney allows someone, of your choice, to deal with your affairs when you are still alive but unable to make or communicate your own decisions.

Why we recommend a POA

People believe that ‘next of kin’ will be consulted and will be permitted to make decisions for a person if they are deemed incapable of making them themselves.  It is wrongly assumed that the next of kin will be able to make medical and welfare decisions or access a bank account to pay bills for a person. Indeed, in days gone past that was the case but unfortunately, those days are long gone.  Even simple decisions and actions cannot be carried out unless you have formally appointed someone to make them for you.  The only legal way for someone to make decisions about your welfare or your financial affairs is to have appointed an Attorney to do so.

A Power of Attorney comes in two parts, welfare & financial.  You don’t need to have both, but it is recommended.  You can also choose different people to be your Welfare and Financial Attorneys, it can be the same person, but it doesn’t need to be.  The important part is that who you appoint is someone you trust to make the decisions for you as you would have done had you been able.  It is also sensible to have at least two Attorneys or a ‘whom failing’ Attorney so that should your first choice Attorney be unable to carry out the position, there is someone else appointed who can step up.  As you can only make a Power of Attorney when you have capacity you must make it as robust as possible.

Welfare Power of Attorney

The welfare Power of Attorney deals with everything from deciding on medical treatment and where you should live, if you need care or nursing support to simple things like authorising someone to dress you and feed you if necessary.  This part only comes into operation once you have lost capacity.  While you are able, you continue to make decisions about your care and welfare yourself.  You do not immediately hand over control of your welfare when you sign a Power of Attorney, which is a common misconception.  Your welfare Attorney only takes charge when you are no longer able to.

Continuing Power of Attorney

The financial part of the Power of Attorney is called the ‘Continuing’ Power of Attorney.  This part can, if you wish, be active as soon as you grant the Power of Attorney and it is registered with the Office of the Public Guardian.  Alternatively, you can defer this part until you no longer have the capacity as happens with the Welfare part.  The choice is yours.

The Continuing Power of Attorney allows your Attorney to deal with all your financial affairs.  Anything that you would have to deal with, your Attorney has the authority to do on your behalf.  Your Attorney has the power to do day to day financial transactions, such as paying bills for you, opening and closing bank accounts, investing money and dealing with pensions and the DWP.  A Power of Attorney also gives your Attorney the ability to sell property – if you can no longer live in your house and need alternative accommodation, then your Attorney can sign papers to sell property and to buy or rent for you.

You can only grant a Power of Attorney when you have capacity to do so, i.e., when you are deemed as understanding what you are doing.  Once you no longer have capacity, then you are not able to grant a Power of Attorney and your family would need to apply to the Court to become your Guardian. A Guardianship Application through the Courts is a lengthy process, involves doctors, Mental Health Officers and it is an extremely costly process.

Making a Power of Attorney is straightforward and is a piece of planning every adult should consider.  It is one document that if it is ever needed, then it is worth its weight in gold!

Contact our Power of Attorney Solicitors, Ayrshire

If you need advice or assistance regarding Power of Attorney for yourself, or concerning a loved one, contact us today.  To get in touch, please call 01292 281711 or complete our online enquiry form. We look forward to hearing from you.

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