By Beth Moffat
Powers of attorney in England and Scotland have many similarities. As in England, individuals can appoint one or more attorneys to manage their financial and welfare affairs using a power of attorney which must be registered with the Public Guardian before it can be used.
However, Scottish powers of attorney not only use different terminology but they have a different composition. Rather than a statutory form which is completed by the granter, Scottish powers of attorney are deed based and usually prepared by a solicitor.
Most importantly, Scottish powers of attorney include a certificate which can only be signed by a ‘prescribed person’ (a solicitor, practising member of the Faculty of Advocates or a medical practitioner). The certificate states that the prescribed person:
1. Interviewed the granter of the power of attorney immediately prior to the signing of the power of attorney
2. Is satisfied that the granter fully understands the nature of the powers being given and the extent of them
3. Has no reason to believe that the granter is acting under any influence or other reason which should prevent the power from being given.
The inclusion of this certificate helps to ensure that an independent assessment of the capacity of the granter takes place before they sign a power of attorney. This can prove to be an essential safeguard in preventing the misuse of powers of attorney.
Beth Moffat is a senior solicitor with MacRoberts LLP
What is an LPA?
An LPA ensures that your affairs are managed by someone you choose, rather than the Court of Protection.
Benefits of Lasting Power of Attorney (POA)
Signing a power of attorney before becoming incapacitated preserves your wishes (legally) in writing. This protects you and the people that care for you.
A POA means choosing the person you want to make decisions on your behalf. These can be important financial or even health decisions, so you’ll want to select the person you trust the most to carry out this role. It will be more expensive, difficult and time-consuming for your family to get the authority to act on your behalf when you are not able to give it – and you won’t be in a position to select your attorney for yourself.
Laws exist to prevent fraud and financial abuse. Without a signed POA in place, the person acting on your behalf may not be recognised by agencies such as banks or your mortgage provider etc, should the sale of your home become necessary. This means that they won’t be in a position to act meaningfully on your behalf, even if it’s your spouse – don’t assume that they will be granted recognition. (In other words your assets may not be available to help fund your care, for example.)
Without the authorisation of a POA the agent (often a family member) could also be at risk of financial abuse allegations.
Peace of mind for everyone
Preparing a POA can relieve the burden of family members who are most likely to organise your care if you become incapacitated. Knowing about your wishes and intentions in advance can be a great help and provide peace of mind to both granter and attorney.