Insights

Fact v Fiction

As we enter the 2020s, there are still several myths surrounding Powers of Attorney and their operation.  No one intends to lose capacity, and no one intends to leave their affairs in the hands of another, but it is important to try to think one step ahead, and set out your wishes while you still can. 

A Power of Attorney is a legal document which allows the granter to set out who they wish to manage their personal affairs (‘Attorney’) in the event they no longer have capacity to do so.  The key is to appoint someone you trust who will understand your needs and who who will have your best interests at heart.  Without a Power of Attorney, a court process is required and you will have no control over who is ultimately appointed.

The document is split into two elements (1) Continuing (Financial) powers, and (2) Welfare powers. 

The financial powers are extensive so that your Attorney can deal with all your assets on your behalf.  They include matters such as opening and closing bank accounts; purchasing or selling a property; loaning or borrowing funds; continuing business interests; and making payments to dependents.  The welfare powers relate to your personal welfare, for example choosing where you will live, consenting to medical treatment and deciding what care you require.  When exercising these powers, Attorneys are guided by the ‘Attorney Code of Conduct’ which outlines the general duties they are under, such as a duty to keep all activities carried out to the minimum intervention necessary, and to take account of the present and past wishes of the granter.

Despite the importance of these documents, there are still many misconceptions in this area and there have therefore been a number of campaigns in recent years to attempt to debunk the myths.  Set out below are a few of the most common reasons why clients think a Power of Attorney is unnecessary:

Myth 1: A Power of Attorney only comes into effect once capacity has been lost

This is true in relation to the ability to make welfare decisions, but the financial powers actually come into force from such time as the document is registered.  Even if you have capacity you can instruct your Attorney to carry out finance related tasks on your behalf.  This can be useful for clients who are working abroad or who require to spend an extended period in hospital.

Myth 2: Powers of Attorney can be drafted at home and will have legal effect

Signing a Power of Attorney has serious legal consequences.  As such, a doctor or a lawyer must be present to certify the client’s capacity.  Without such a certification registration will be refused.  A ‘DIY’ Power of Attorney is therefore not an option.

Myth 3: It is a lengthy and complex process

That does not need to be the case, at Stronachs we aim to make the process as easy as possible for clients.  After taking your initial instructions, a draft will be prepared for your review.  Once finalised, we will arrange a short meeting to sign the document.  We recommend that you let your proposed Attorneys know that you are putting in place a Power of Attorney as we also require to write to them with a short form for their signature confirming they are happy to act as Attorney for you.  The final step is then registering the document with the Office of the Public Guardian.  If there is no immediate issue that requires attention the registration process currently takes 2-3 months but can be as short as a week if circumstances require a quick turnaround.

Myth 4: I have a Will and therefore I do not require a Power of Attorney

A Will expresses your wishes for the handling of your affairs on your death, but has no bearing on your lifetime.  A Power of Attorney allows decisions to be made on your behalf in relation to your affairs whilst you are still alive but without capacity.

Myth 5: I am too young to need a Power of Attorney

Powers of Attorney are often associated with older people suffering from dementia or similar issues but this is just one area where they can be of use.  None of us know what is around the corner.  Accidents or sudden illnesses are a risk for all clients, not just the elderly.  A Power of Attorney allows you to decide who will assist you should the unthinkable happen and gives them the power to start acting on your behalf straight away.

We recommend that all clients consider putting in place Powers of Attorney.  To discuss your own circumstances in more detail, please contact any member of our Private Client Team who will be very happy to assist.