POWERS OF ATTORNEY
What is a Power of Attorney
A power of attorney is an authority given by an individual (known as the Granter) to another person(s) (known as the
Attorney/s) to deal with aspects of the Granter's affairs. This could relate to financial/property matters and/ or personal
welfare.
Powers relating to the Granter's financial /property affairs are known as "continuing powers" and may be given with the intention of taking effect immediately and continuing upon the Granter's incapacity or beginning on the incapacity of the Granter. "Welfare powers" be exercised until such time as the Granter has lost the capacity to make these decisions. Granters have scope to grant whatever powers they choose. However, as these powers will be strictly interpreted, the Granter should ensure that the powers granted are specific and cover all the relevant aspects of their affairs. A power of attorney document should contain either continuing powers, welfare powers or a combination of both.
When a continuing power of attorney is to begin only in the event of incapacity or if welfare powers are conferred, the document must include a statement confirming that the Granter has considered how their incapacity is to be determined. It is suggested as good practice for the Granter to also consider stating in the document how incapacity is to be determined or highlighting who should determine when the Granter has lost capacity.
Who can I appoint as my attorney(s)? The attorney(s) should be someone you trust. You can appoint who you want, this could be a relative, a friend or a professional person such as a solicitor or accountant or a combination. You can appoint someone to deal with financial matters and someone different to deal with personal welfare.
Who cannot act as an attorney? Someone who is currently declared as bankrupt cannot be appointed or act as a continuing attorney. For the purposes of this Act, a person is bankrupt if their estate has been sequestrated for insolvency or a protected trust deed has been granted. Please contact the Office of the Public Guardian (OPG) if you require further information on this.
How do I create a Power of Attorney? You need a written document, a certificate of capacity and a registration form
What are the Public Guardian´s responsibilities? All Continuing and Welfare Powers of Attorney must be registered with the OPG who will maintain a Public Register. The Public Guardian also has a statutory obligation to notify the appropriate local authority and Mental Welfare Commission of any Powers of Attorneywhich have been registered.
Once a Power of Attorney has been registered with this office, the Public Guardian will return the signed Power of Attorney and issue a Cerfificate of Registration to the sender. The Certificate can then be used by the Authority immediately in the case of a Continuing Power of Attorney if this is the Granter´s wish, or it can be kept safe until such times as the Granter has lost capacity or wishes the Attorney to act on his/her behalf. A Welfare Attorney however cannot excercise any of the welfare powers granted until the Granter has lost capacity.
Can the Power be Revoked?. The Granter can revoke a Continuing or Welfare Power of Attorney or any powers granted in it once it has been registered with the Public Guardian. The Granter must give notice of the revocation in writing.
If a Granter wishes to revoke either some of the powers or all the powers in the Powers of Attorney, a certificate completed by the prescribed person (registered and licensed medical practitioner or a practicing solicitor or a legal advocate) must be attached to the letter informing of the revication. The date when the Granter subscribes the revocation notice must be the same day he/she is interviewed by the prescribed person
1. The Written document.
In order to create a power of attorney a written document is needed which sets out the precise powers that the Granter wishes the Attorney to have. The document must be signed by the Granter.It must also state clearly that the powers are continuing, welfare or a combination of both.
As the power of attorney gives authority to another person to act on your behalf it may be in your best interest to seek professional/legal advice when completing your power of attorney document.
2. The Certificate of Capacity.
The document must also include a statutory certificate signed by your doctor or solicitor which confirms that:
They have interviewed the Granter immediately before he/she signed the power of attorney document and they are satisfied either through their own knowledge or by consulting another person that the Granter fully understands what he/she is doing and the nature and extent of the powers he/she is giving and they have no reson to believe that the Granter is acting under any due influence.
This is a single certificate and can be used when the following powers are conferred:
A Welfare Power of Attorney
A Continuing Power of Attorney
A Welfare and Continuing Power of Attorney
3. The Registration Form
To speed up the application process it is recommended that the Public Guardian´s registration form be completed. Then the registration form, power of attorney document and the certificate should be submitted along with the fee (currently £73 GBP) to the OPG.Cheques made payable to "The Scottish Court Service" (Legal Will Writers of Moray can submit these documents on your behalf)
Legal Will Writers of Northumberland & The Borders offer a free consultation by telephone/WhatsApp/Facetime/or email for both English and Scottish law making Powers of Attorney in all parts of Yorkshire and also in Scotland with Powers of Attorney in Moray. Documents can be downloade, completed and emailed or posted.