What you need to know

Most of us have heard of a Power of Attorney (or POA as most call it), but do we really know what it is? POA is a legal document that can help a person if there ever comes a time when they lose capacity and can no longer make decisions for themselves, or in other words, how to plan ahead while you have the capacity to do so. It is a legal document that allows a person to nominate someone to deal with certain aspects of their affairs should they lose capacity. This can be a relative, friend, a solicitor, or a combination of all of these. You can appoint one or more persons, each with different roles or all acting equally.

According to the Office of Public Guardian (OPG) in Scotland, there are three types of POAs:

1. A Continuing POA gives powers to those whom the person nominates to deal with their money and/or property affairs. A Continuing POA can take effect as soon as it is granted if the person requests it and it is registered with the OPG, but usually they only take effect in the event of the person’s incapacity. This would be stated clearly in the POA.
2. A Welfare POA gives powers to those whom the person nominates to make decisions around health or personal welfare matters. Welfare POAs only take effect when the person has lost capacity to make decisions. “Incapable” means incapable of making decisions; communicating decisions; understanding decisions; or retaining the memory of decisions they may have made. This determination of incapacity will be undertaken by a GP or other relevant professional and a report will be produced stating so.
3. A Combined POA – includes both welfare and continuing POA powers. Most POAs are a combined POA, but it is the person’s choice as to the type of powers they wish to grant to those they nominate.
   Lots of people think that losing capacity “won’t happen to me” or “there’s no need”, but suffering a heart attack or stroke, a serious injury or accident, or diagnoses such as Alzheimer’s or dementia could render a person incapacitated in a very short space of time.
   POAs are no longer an option after a person loses capacity, and the only other alternative is Guardianship, which is a longer and much more expensive and complex legal process. In some cases, the Local Authority (Council) will undertake this process and family members will lose all their rights to have a say in the loved one’s care and financial matters.
   Advocacy Workers for Advocacy Western Isles have noticed an increase in the number of people with no POAs. In the past four months, AWI has been involved with 12 individuals with this issue who needed Independent Advocacy to be their voice and support them through the POA process.
   Dr. Kate Dawson, GP Partner at Benbecula Medical Practice, Griminish, Benbecula, says: “POA is part of preparing for the future, your chance to choose who can make decisions on your behalf if you become incapacitated. You also need to talk to your nominated person/s about your wishes.” 
   
   Myths (Source: OPG)
   “I Have a Will” – Wills are for when a person has passed away; a POA is for a person when they are still alive. A POA ceases to be a legal document when a person passes away.
   “My Family Can Look After Me” – If you lose capacity and have no POA your family can’t make any legal decisions on your behalf with regards to your personal and financial welfare (decisions on your care, selling property, etc) without a POA in place.
   “I Don’t Have the Money” – If you are on a low income, that shouldn’t deter you from making a POA. Financial help is available for those on low incomes or unemployed.
   
   For more information contact:
   Find a solicitor: https://www.lawscot.org.uk/find-a-solicitor/
   Legal Aid Services for POAs: https://www.slab.org.uk/new-to-legal-aid/
   Detailed information on POAs and Guardianships: https://www.publicguardian-scotland.gov.uk/
   Access to Public Services in Scotland: https://www.mygov.scot/
   More information on POAs Western Isles-wide: https://mypowerofattorney.org.uk/in-your-area/western-isles/
   
   If you feel you require the support of Independent Advocacy regarding a Power of Attorney and/or Guardianship, please contact Advocacy Western Isles for free and confidential assistance:
   uistandbarra@advocacywi. co.uk
   01878 700 000
   office@advocacywi. co.uk
   01851 701 755
   www. advocacywi.co.uk.