Power of Attorney
Following a diagnosis of dementia it is important to make plans for your future financial and personal welfare as soon as possible. Later on in your illness you may no longer be able to make certain legal decisions.
What is Power of Attorney?
A Power of Attorney (PoA) is a legal document in which you appoint someone you trust to look after your welfare and/or continuing (financial) affairs. A PoA is enacted should you be assessed as lacking capacity, also known as incapacity, but a continuing (financial) PoA can begin earlier if you wish. You decide what your Attorney can do on your behalf if you are no longer able to make your own decisions. East Dunbartonshire Dementia Network can provide independent advice on making Power of Attorney.
What Does Incapacity Mean?
A person’s capacity could be impaired suddenly as a result of an accident or illness or gradually as a result of a condition such as dementia. A registered medical doctor or Solicitor will be able to say whether or not a person lacks capacity to make a specific decision at a particular time. A person may be able to make some decisions and not others. If someone is assessed as lacking capacity in relation to their welfare or finances their Power of Attorney may act on their behalf.
Types of Power of Attorney
There are two types of PoA: one which includes managing your money and property only, known as a Continuing (financial) PoA; the other deals with personal welfare and decisions about your health known as a Welfare PoA. You can choose one or the other, or you have the option of having both in place. You do not need to choose the same person to do both; you can appoint a separate Attorney to deal with finances and a different Attorney to help with welfare decisions.
Welfare Power of Attorney
For a Welfare PoA you can also choose what powers you would want your attorney to have, for example, deciding on your arrangements for care, making decisions about where you should live, consenting to medical treatment, access to personal or confidential information about your welfare etc. A Welfare attorney can only take on these powers when you lack the capacity to take these decisions yourself and not before.
Continuing (Financial) Power of Attorney
A continuing PoA only covers your property and financial matters and gives no power to take any other personal decisions. The document must specify exactly what powers your Attorney is to have. You might want to make a list of all the powers that the Attorney is to have or you may wish to give them a general right to deal with all financial affairs. However, if you want them to deal with property such as your house then the PoA must specifically state this. Powers could include things like; paying bills, dealing with bank accounts, buying and selling investments and property, access to important financial information, signing documents and entering contracts to name but a few. You can choose to have a Continuing (financial) PoA operate straight away, even while you have capacity, for convenience, or you can specify that it can only be used after a particular event, for example if your doctor certifies that you lack the capacity to manage your own affairs.
Choosing Your Attorney
Your attorney should be someone you trust and who knows your wishes. Many people chose a relative or close friend. Your attorney could also be a company, for example part of a bank or Solicitors, but note that this option will incur ongoing charges.
You may decide to choose more than one attorney. If you choose this option you need to decide whether they can act jointly or severally, this means whether they need to make decision together or whether they can make decisions on their own.
It is also a good idea to have a substitute attorney who could act if your original attorney was unable to for example through ill health or death.
How Can I Get Power of Attorney?
You can apply for PoA yourself using the information available on the Office of the Public Guardian Website, which includes an on-line submission of application facility. You may feel, as PoA is a legal document, you wish to consult a solicitor to draw up PoA on your behalf. Solicitors charge varying fees for drawing up PoA and it is recommended that individuals get several quotes before instructing a solicitor. Once completed, either by yourself or by a Solicitor, the PoA documents need to be registered with the Office of the Public Guardian which charges a fee – currently £73.00 for registering your PoA, it is worth noting that it currently costs £73.00 whether you register a Continuing PoA or a Welfare PoA or both at the same time.
What Happens if I Do Not Appoint a Power of Attorney?
Where Power of Attorney has not been granted and a person lacks capacity to make a decision no one has the automatic right to make that decision. In the case where welfare or financial decisions need to be made on an individual’s behalf but the individual lacks capacity a Guardianship Order can be applied for.
This is a legal process which can take up to six months and is a Court Order issued under the Adults with Incapacity (Scotland) Act (2000).
What Can East Dunbartonshire Dementia Network Do To Help?
They can help by providing advice and information on PoA, and also support individuals to plan what they want in their PoA. They can provide example PoA documents which can be adapted to your circumstances and lists of solicitors, and they can also refer you to an Advocacy Worker who could accompany you to appointments and support you to think about choosing a solicitor. Although East Dunbartonshire Dementia Network staff have an awareness of relevant legislation, it is important to note that they are not legally trained. If you require a Solicitor they can help you to find one.
My Power of Attorney
My Power of Attorney is a campaign about giving individuals the power to make decisions that will protect them, their family and those they care about should they ever lose the capacity to make decisions for themselves.
Legal Services Agency provides legal advice and representation to people with dementia, their families and carers. Telephone advice line 0141 353 3354, Tuesdays 11am-1pm.
A Guide to Making a Power of Attorney by the Office of the Public Guardian sets out how to create a Power of Attorney and is available in other languages.