Making decisions on our finances and wellbeing is something most take for granted. But what if you lose capacity to make these decisions? Who will make them for you, and what impact could this have on your lifestyle?
Although as a nation, we are living longer, chances are, we will not enjoy our current quality of health for the rest of our days.
For some, the capacity to look after their affairs is impaired gradually, for example, growing older, or health deteriorating through illness such as Alzheimer’s, but a sudden accident or illness can happen to anyone.
A Power of Attorney (PoA), is a written document that gives legal authority for someone you trust, to make decisions on your behalf. In Scotland, there are two types of PoA: Continuing – for decisions to be made about your property and financial affairs; and Welfare – for decisions to be made about your health and welfare.
Most people make a combined PoA, thus allowing decisions to be made on both.
It is important to appoint someone you trust as attorney, someone who knows your feelings and wishes for when your PoA is to be used.
You can appoint a friend, relative, partner/spouse, as long as they are over 16, and you can appoint as many attorneys as you wish.
When does your PoA start? You decide when your attorneys begin to act for you. Continuing attorneys can start to act straight away, as soon as the PoA is registered, or if you choose, at a later date, which could be in the event of losing capacity.
Welfare PoAs only begin when you lose capacity to make your own decisions.
Importantly, you must be of sound mind to set up a PoA, and the implications of leaving it too late are sobering.
No-one has the right to act on your behalf without your legal authority.
That means your family or friends may have to go to court to get permission to make decisions for you.
If you were to lose mental capacity, decisions relating to your bank accounts, pensions, investments, paying your bills and even deciding where you should live, would need to be made.
If you haven’t set up a PoA prior to losing capacity, the courts would have to appoint guardianship to make decisions on your behalf.
This option takes time, can prove costly and you cannot control who is appointed.
Planning now, will give you peace of mind for the future and it is good practice, when setting up your Will, that you seek legal advice from a solicitor to set up a PoA at the same time.