Powers of attorney - FAQs when living with dementia or Alzheimer's
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Legal director Lisa Law, based at Brodies' Highlands office, answers some common questions about powers of attorney and the importance of having one in place.
September marks World Alzheimer's Month, raising awareness of Alzheimer's and, indeed, all forms of dementia. In the Highlands alone, an estimated 6,500 people are living with dementia. There are currently approximately 93,000 people living with dementia across Scotland and this figure is expected to double in a generation.
When a diagnosis of dementia happens, the last thing that is on your mind is seeking legal advice or appointing a power of attorney – but unfortunately, time is of the essence, and making that decision at the right time can ensure you have control over what happens to your finances and wellbeing, in the future.
What is a power of attorney, and why do I need one?
A power of attorney is a legal document which allows you to choose someone else to act on your behalf in the event you lose capacity and are unable to look after yourself or your affairs. This means this person can look after your finances (for example, accessing your bank accounts) and make decisions about your care and welfare (such as, what hospital treatment you receive). Having a power of attorney in place means that if something happens to you, the process is much easier for your family to look after you and your affairs.
I already have a will stating my wishes, why do I need a power of attorney as well?
A will only comes into effect once you have passed away whereas a power of attorney is there to look after your affairs when you are alive. When you die, your power of attorney ceases automatically.
Surely my spouse or family member can automatically make decisions for me if I'm no longer capable?
This is a common assumption. However, institutions, medical practitioners and local authorities can only take instructions from the individual or someone with the authority to provide instructions on their behalf – namely, an attorney. Without a power of attorney, family members may not be able to access your bank accounts, pay bills or deal with matters relating to your home. In addition, your family members may not be able to make decisions relating to your medical treatment or care – with such decisions being made by the local authority instead. This often leaves family members feeling upset and stressed as they are removed from crucial decision making or unable to access funds or settle outstanding debts.
How many people can I choose to have power of attorney?
There is no limit on the amount of people you can appoint as your attorneys and you can have several people. If is generally recommended that you appoint a minimum of two attorneys or, preferably, three attorneys. Some people grant different powers to each attorney (some have financial powers, others have welfare powers). If you have multiple people with the same powers, it is advisable to consider whether they would have a good working relationship to avoid disagreements in future.
Who decides whether or not I'm still capable of appointing a power of attorney?
Your solicitor will be able to meet with you and assess whether or not you have capacity. In some circumstances, your solicitor may wish to consult your GP or another medical practitioner attending you for their opinion on your capacity.
What happens if it's too late to appoint a power of attorney?
Unfortunately, this is a common issue, made all the more apparent after months of isolation in lockdown recently. If a close friend or family member loses capacity, there are other options available to allow you to act on their behalf and protect their interests. The most common of these is a guardianship order. However, becoming a legal guardian is a time consuming and expensive process: having a power of attorney is much simpler and cheaper.
Quite simply, a power of attorney gives you and your family peace of mind.
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