A Power of Attorney is an essential future-planning tool no matter what stage of life you are at. In Scotland, everyone over 16 years old is presumed to have ‘legal capacity’ which means they can make their own decisions under the law. Ensuring you have a Power of Attorney allows you to prepare for a time where you may not be able to make decisions of your own accord, or where you need assistance to do so.
In this article, we will discuss:
- The law and mental capacity in Scotland
- What happens if you lose mental capacity and do not have a Power of Attorney?
- What type of Power of Attorneys do you need?
For advice specific to your circumstances, get in touch with our private client team today by calling 0141 248 3456 or completing the online enquiry form.
The law and mental capacity
If an adult in Scotland becomes incapable of making decisions about their welfare or finances, they are protected by the Adults with Incapacity (Scotland) Act 2000. The Act makes provision for safeguarding those who have lost mental capacity or the ability to communicate their needs, and those who wish to help them.
The Act sets out that a person may no longer have mental capacity if:
- they cannot make decisions or act on their decisions;
- they cannot effectively communicate their decisions or intentions;
- they cannot understand the consequences of their decisions; or
- they cannot remember the decisions they make.
Incapacity may apply to people who have mental incapacities such as dementia or a brain injury, and to those who are unable to communicate their wishes effectively as a result of physical disability.
The primary purpose of the Act is to allow people to plan for a time where they may no longer be able to make decisions for themselves. It is recognised that in many cases, a person’s mental capacity can change both in the short term and long term. As such, the Act sets out that an Attorney must be mindful of the person’s “present and past feelings and wishes as far as possible”.
A Power of Attorney document specifies who can make certain decisions, and how they should come to their decision. Although many will never need to rely on a Power of Attorney, it can be comforting to know you have one in place.
What happens if I lose mental capacity and I have Power of Attorney in place?
It is a common misconception that if a person becomes ill or unable to make decisions for themselves, a family member – such as an adult child or partner – can simply step in and make decisions on their behalf. This is not the case.
Legally, no one is automatically awarded the right to make decisions about your welfare and finances, unless you have set up a Power of Attorney in advance. If you have failed to put a Power of Attorney in place, and you lose capacity, the person who wishes to make decisions on your behalf will need to go Court. The process of obtaining authority to make decisions on behalf of another person after they have lost capacity can be costly and may take a long time. It can also be challenging and stressful for your loved ones.
If you lose capacity and do not have a Power of Attorney, you are risking a person you would not have chosen to be appointed as your Attorney. By setting up a Power of Attorney, it can give you peace of mind that your affairs will be taken care of by the person of your choosing should they accept. This will also give you the chance to discuss your wishes in depth with your trusted individual to ensure they fully understand.
What type of Power of Attorney do you need?
There are four types of Power of Attorney available in Scotland. The type you require will depend on your circumstances, and the eventualities you wish to plan for:
Simple Power of Attorney
A Simple Power of Attorney is typically created for a set amount of time or to deal with a specific issue. An example of this is if someone is going into hospital for a set period of time and needs someone to make decisions on their behalf while they are away. It is essential to understand that a Simple Power of Attorney only lasts as long as you have mental capacity.
Continuing Power of Attorney (CPA)
A CPA enables you to appoint an Attorney to look after your property and financial affairs. Examples include managing your bank accounts or selling your home. When creating a CPA, you can opt to have the powers to become effective immediately or state that the powers only come into effect if you lose the ability to make decisions.
Welfare Power of Attorney (WPA)
A WPA allows your Attorney to make decisions about your health and welfare in circumstances where you are unable to make these decisions for yourself. Examples include medical treatment, where you live, and personal care decisions.
Combined Continuing and Welfare Power of Attorney
This type of Power of Attorney allows your Attorney to look after your financial affairs (like a CPA) as well as your welfare decisions (WPA).
Our lawyers will discuss your circumstances with you and set out your options clearly. We can help you and your family plan effectively for the future. Get in touch with us today.
Contact our Expert Power of Attorney Solicitors in Glasgow, Scotland
We understand that there are many things to consider when setting up a Power of Attorney, but our experienced solicitors can help. Our lawyers will set out all of your options clearly, providing practical advice and assistance at every stage of the Power of Attorney process. Please contact us now on 0141 248 3456 or complete our online enquiry form to arrange an appointment to have a Power of Attorney drawn up by our expert solicitors.
