We have all read the many high profile celebrity cases over the years involving unexpected loss of capacity, think Michael Schumacher or Britney Spears, without effective personal affairs plans in place to protect the individual and their loved ones around them – so why do we wait until it is perhaps too late?
You may believe a Power of Attorney should only be put in place when you become elderly or perhaps are diagnosed with an illness, but it is beneficial to be proactive with your personal arrangements at any age. Unfortunately, we do not know what the future holds, and if you were to become unable to make your own decisions or do things on your own, even if only for a short while, it is crucial to be prepared and have your wishes set out.
You may already have someone in mind that you would like to act for you, if you are unable to yourself. Many people believe that their next of kin will automatically be able to make decisions on their behalf however, that person has no legal standing with, for example banks, and may be unable to make decisions on your behalf, regarding your welfare and medical treatment. Where you are unable to make decisions for yourself, they require the legal authority to do so. This can be done in your Power of Attorney, where you nominate the people you trust the most (your “Attorneys”) to make financial and/or welfare decisions for you and, ultimately, look after your best interests.
It is a common misconception that Powers of Attorney can only be used when you can no longer make decisions for yourself. However, it is also possible, and indeed may be sensible, to allow your Attorneys to act for you in relation to matters where you still have mental capacity. For example, if an urgent matter arises but you are on holiday, or are working away from home or if you would simply prefer to delegate dealing with banks etc to a trusted family member or friend. However, if you have a Power of Attorney, instead, you could ask your Attorneys to deal with it on your behalf.
Everyone’s personal and family circumstances are different, and so it is important that when a Power of Attorney is prepared, a wide range of powers are included covering the various matters that may need dealt with, both now and in the future. So long as you do not lose the ability to make decisions for yourself, you can amend your Attorneys to reflect who you trust to fulfil this role as time moves on, for example, your children when they become adults.
If you lose the ability to make decisions for yourself and do not have a Power of Attorney in place, the courts may need to appoint a Guardian for you. This is a long, expensive and often stressful process in comparison to putting a Power of Attorney in place in advance. Moreover, the appointed Guardian may not be who you necessarily would have picked.
Ultimately, if you are aged 16 or over and have the mental ability to make financial, property and medical decisions for yourself, then it is a good time to consider how you would like to express your wishes, retain control and save yourself and your loved ones from undue stress and expense if an unexpected situation was to arise by putting a Power of Attorney in place.
*This article originally featured in The Scotsman on 29 July 2024.
