Powers of Attorney are like a reassuring insurance policy - Andrew Paterson

A simple legal document can being peace of mind, writes ​Andrew Paterson

Let’s kick off with two questions: what were you doing on November 23 last year and do you know the significance of that date?

I strongly suspect the answer to both is ‘don’t know’ but hats off if that’s not the case. It was, in fact, National Power of Attorney (PoA) Day – who would have thought that a topic most would consider of interest only to lawyers would have a dedicated day in the calendar?

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It’s not necessarily a subject that has businesses scrambling to give staff time off to celebrate either, but it is one that unites a disparate group of organisations and professional advisers. Accountants, IFAs, local authorities, banks and charities, amongst others, all join lawyers in recognising the importance of this legal document. And what’s more they all strongly encourage clients and staff to put a PoA in place.

Andrew Paterson is a Partner, Murray Beith Murray (Picture: Ian Jacobs)Andrew Paterson is a Partner, Murray Beith Murray (Picture: Ian Jacobs)
Andrew Paterson is a Partner, Murray Beith Murray (Picture: Ian Jacobs)

There’s a clue in its name as to what it’s all about – the word ‘power’ is entirely appropriate as this document’s key aim is to allow you and those you trust to retain power and control over your own affairs. This is absolutely not about ceding control of your health and wealth to others, with no say as to what happens next. It’s important to recognise that you’re very much the architect in setting the path and strategy for your care and finances when you are no longer capable of doing it yourself, even if your family and most trusted friends or advisers ultimately carry out the practical elements of it.

Plenty of legal documents are complicated and difficult for the layman to understand but their reasons for existing are readily acknowledged. However, it is concerning that with PoAs their very purpose is so often misunderstood. It’s the equivalent of a reassuring insurance policy meaning your wishes, health related or financial, are carried out at all times.

If you don’t have a PoA in place and you no longer have the capacity to make decisions for yourself, then those looking after you can face a lengthy, expensive and complex process of appointing a guardian. It’s a myth that your family can simply step in and legally look after you and your affairs. This is not an age-related issue either as it’s something all should consider, not just those in later life.

A guardianship, which is usually only for a fixed period of time, is applied for through the courts and can take up to six months to be granted. Your solicitor, on the other hand, can provide a lifetime of certainty and reassurance through the simple process of setting up a PoA. Every solicitor could probably regale you with horror stories of clients struck down in mid-life by illness or accident, leaving dependents unable to access banks accounts and funds when they are needed most.

There are two main types of PoA in Scotland: a Continuing Power of Attorney to take care of financial and property affairs and a Welfare Power of Attorney covering all aspects of health and wellbeing. Both need to be registered with the Office of the Public Guardian (Scotland) and of course you should appoint only those in whom you have complete trust to look after your affairs.

It would indeed be a welcome development if, in due course, we didn’t need awareness days and campaigns to encourage more to arrange a PoA. The first step is to contact your solicitor.

Andrew Paterson is a Partner, Murray Beith Murray

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