Dementia Centred

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By Fiona Byron

September 9th, 2016

Be legally prepared!

As a lawyer, I see many different types of clients at various different stages of their lives.  Quite often my clients tell me that they are "too young" to think about Powers of Attorney and it's something they will consider if required in the future.  At the other end of the scale, I frequently meet with relatives whose loved ones have already lost capacity at which stage a Power of Attorney is no longer an option.

The truth of the matter is that none of us have a crystal ball and it is impossible to predict the future.  So, while there are legal remedies available for those people who lack capacity to make their own decisions, these tend to be much more costly and less flexible for all involved.  If you take one thing from this blog, it is that it's never too early to put a Power of Attorney in place!  Being prepared can make things so much easier, not only for the individual but also for their carers and family.

A Power of Attorney is a written legal document which can appoint trusted friends or family members to look after an individual's financial and welfare matters.  There is flexibility so the Attorney can be given whatever powers the individual deems appropriate, whether these are in relation to dealing with bank accounts and investments, property or even in relation to personal care. 

An Attorney must act in accordance with certain principles and safeguards set out by legislation and must consider not just the individual's present wishes but any past wishes or behaviours which would indicate what the person would have wanted or done if he had the capacity to make a decision.

The document itself must be registered with the Office of the Public Guardian before it becomes operational.  Some of my clients choose to register these straightaway, while others wait until they are needed.  The important thing is to ensure that the Power of Attorney is drafted and signed at a time when the individual has "capacity".  In other words, they understand who they are appointing and why.

In addition to putting a Power of Attorney in place, more particular wishes and directions regarding medical treatment can be contained in an Advance Health Directive or Living Will.  Although the Scottish Parliament has not yet passed legislation which gives these legal force, the fact that they indicate what an individual's wishes are and demonstrate what they would have done if they had capacity to make the decision makes them extremely useful both to the Attorneys and to the medical team involved.

Both Powers of Attorney and Advance Health Directives are simple to set up and provide a clear written record of an individual's wishes.  Being legally prepared really can help to provide peace of mind to all involved - so please don't delay! 

This Note is for information only, is not intended to be construed as legal advice and should not be treated as a substitute for specific advice.

Fiona Byron is a senior solicitor at award winning law firm, Morton Fraser, who specialises in Wills, Powers of Attorney, Later Life Planning, Charity Law and Tax Planning.


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