Gibson Kerr: Putting families first when planning for the future
As difficult as it is to talk about with your family, we know that putting the proper plans in place can save a lot of time and trouble should you need someone to make some big decisions for you.
It’s good to talk.
As a family, planning for the future is something you really should discuss together, however briefly. Of course, most parents are aware of the need to have a will in place, to make sure their family are taken care of when they die.
But what if something were to happen and you or your parents suddenly found yourself unable to speak for yourselves or make decisions? It’s not a nice thought and not an easy conversation to have.
But by naming an attorney – someone you trust to handle your affairs and make the right decisions if you’re unable to – you are taking away some of the uncertainty. When you put a power of attorney in place, it gives you the chance to have discussions with your chosen attorney about your views regarding care and let them know what your wishes are in case they need to make these decisions for you in the future.
Do I need a power of attorney?
Granting a power of attorney means you appoint someone else to act on your behalf if you are no longer capable of doing so.
It’s always better to put this in place before you need it. This means that if you ever become incapacitated – whether through age, illness or injury – your chosen person can step in straight away.
These kind of situations can happen to anyone at any time of their lives, and planning ahead can mean reassurance that someone you trust is responsible for decisions about you and your lifestyle. Your attorney can help arrange care for you if that is ever needed.
If you have older family members, they may need a little encouragement to create a power of attorney. It’s not something we like to think about, let alone talk about, but it could be one of the best decisions they’ll ever make.
Appointing power of attorney can help make tough decisions easier at a difficult time for your family and can help avoid family arguments and disputes.
While you’re encouraging your parents to think about it, it could also be a good time to think about who you would trust to represent you as well!
“Are you saying I’m old?”
The most common reason why people haven’t considered appointing power of attorney is that they’re not old. While power of attorney is most often needed when you are elderly, you certainly don’t need to be elderly to put one in place.
In fact, the earlier you set this up, the sooner you will have peace of mind that your future is in safe hands, whatever might occur.
“But there’s nothing wrong with me!”
Similarly, you don’t need to be ill to start thinking about it. You and your parents may be in perfect health, but no one can predict the future.
You could lose capacity in many ways. It could be through a diminishing illness like dementia or it could be sudden, for example through an accident or a stroke.
And, unfortunately, if you suddenly lose your capacity without a power of attorney in place, you will have lost your opportunity to choose someone you trust to act in your best interests.
“I want to decide for myself.”
Everyone wants the freedom to make their own choices and decisions throughout their lives and appointing a power of attorney does not take that freedom away. In fact, it helps ensure that decisions are being made by someone you have appointed, should that be needed. The attorney you appoint should encourage you to do things for yourself as much as possible and support you with your own decision making when required, rather than take over your decisions. They should also take into account your wishes when acting on your behalf.
If you, or your relatives end up suffering from an illness like dementia or otherwise lose the ability to make decisions or communicate, it may be too late to decide who you want to act on your behalf. It is a common misconception that a trusted family member or friend could simply go ahead and make decisions for you. Unfortunately this is not the case.
Without a power of attorney, the only way to achieve this would be through an application for a guardianship order. This takes the decision making away from you. You may then have no choice in who was appointed or what powers they might have; the decisions are made by the court. The process to apply for guardianship can be time consuming and expensive.
All this can be avoided by putting a power of attorney in place.
“I value my independence.”
The right to make independent decisions is important at any age, and especially as we get older; we don’t want to feel this is being taken away from us.
Having a power of attorney in place does not take away your independence. On the contrary, it ensures that you get to make the decision about who you would like to act on your behalf and what that person could specifically do. The powers need only become effective in the future if you get to the stage of being unable to make decisions or do things for yourself. And in that case the power of attorney is likely to make the process of arranging care for you much easier.
Powers of attorney are regulated by the Office of the Public Guardian in Scotland and can be legally enforceable.
“Maybe I do need a power of attorney.”
So you’ve had the conversation and agreed it’s a good idea. What’s next? The first step is arranging an appointment with a solicitor. This could be at their office or, if you or your parents need it, the solicitor could make a home/hospital visit.
Your solicitors will talk you through the process, answer any questions you have and then take your instructions for the power of attorney. The power of attorney will be prepared for you to sign, and your solicitors will provide you with further information and guidance, as needed.
At Gibson Kerr, personal law solicitors have been helping and advising families on personal law in Scotland for over 100 years. We are a small family-run firm and our clients’ satisfaction is paramount to us. If you have any questions about power of attorney, will planning or any other personal law matter, please get in touch and we will be happy to talk to you.