Talking about what would happen if you were no longer able to make decisions for yourself is not an easy subject to broach with loved ones, but for many the current Covid-19 pandemic may have brought this to the forefront of their minds. In reality none of us know what is around the corner and that it is why it’s best for you and for your family to be prepared for every eventuality.
Many people believe that if they were no longer able to make decisions for themselves, their next of kin would simply step in and make decisions on their behalf. However, this is actually a widely held misconception. As is the idea that only elderly people should have Powers of Attorney. If you become incapable of making your own decisions, even if only for a short period of time, whether it be by accident or illness, no one has the automatic authority to make those decisions for you. People have a variety of relationships nowadays and it’s important that the person you trust can look after matters for you until you recover.
A Power of Attorney is a legal document which allows you to appoint the people you trust to be ‘your Attorneys’ and gives them the legal authority to make decisions for you, if necessary. This document allows your attorneys to step in and make decisions about both your personal welfare and your property and finances. Of course with great power comes great responsibility and it is critical that you appoint people who you trust to carry out your wishes.
Particularly at this uncertain time, it is important for small business owners and those who are self-employed to consider appointing attorneys who could manage their business affairs, if they are ever unable to do so themselves. This does not have to be the same attorneys you appoint to make decisions surrounding your welfare, as these roles operate separately.
A Power of Attorney can be put in place at any time, as long as you have the capacity to do so. In some unfortunate cases, waiting for the diagnosis of an illness may be too late. If a person loses capacity to make their own decisions and they have not put a Power of Attorney in place, the only alternative is for an interested party (i.e. friend or family member) to apply to court to be appointed as a Guardian.
This can be a stressful, time-consuming and expensive process. It also takes the decision away from the individual, as unlike a Power of Attorney where it is down to them to decide who will act as Attorney, it would be up to the court to decide who should be appointed as Guardian, and it may not be who you would otherwise have chosen.
Our advice is to be proactive, no matter your age, and take the necessary steps to ensure that your best interests are placed in the hands of the people you trust most. For more information on Powers of Attorney, please contact a member of our Private Client Team.
This article featured in the Scotsman on 13 July.