The Importance of Planning Ahead: What Happens Without a Power of Attorney?

The Importance of Planning Ahead: What Happens Without a Power of Attorney?

“In this world, nothing is certain except death and taxes” wrote Benjamin Franklin in a letter to a friend in 1789. This statement is as true now as it was then! When it comes to planning ahead, there are several things you can do. You can make a Will to decide who should participate in your estate after your death. You can carry out some Inheritance Tax (IHT) Planning to mitigate the impact of IHT on your estate. Whilst both of these deal with the death and taxes aspects of Franklin’s statement, what about the situation where you do not die but can no longer look after your own affairs?

What happens if I can no longer look after my own affairs?

Being unable to look after your own affairs is not just a symptom of old age. Indeed, the vast majority of older people keep their faculties right till the very end. Their ability to look after their own affairs never diminishes. Alternatively, a significant number of younger people are involved in accidents and illnesses which render them incapable of looking after their own affairs. Irrespective of the reason, when someone loses the capacity to look after their own affairs, there must be some intervention unless they have already drawn up a Power of Attorney.

What is a Power of Attorney?

A Power of Attorney is a document you can prepare appointing somebody you trust to make decisions about your welfare and finances. This allows you to choose someone you know would be most likely to make decisions you would make yourself. If you draw up a Power of Attorney, should you become ill or have an accident preventing you from looking after your own affairs, your attorney will be able to look after your affairs for you.

It is also important to realise that you can prepare a Power of Attorney now and continue to look after your own affairs. Your attorney need not be involved in your day-to-day decisions unless you decide you wish to involve them and ask them to do things for you.

You should also be aware that for a Power of Attorney to be effective after you are no longer able to look after your own affairs, it must be drawn up in accordance with the Adults with Incapacity (Scotland) Act 2000. A Power of Attorney drawn up in this way will continue even though you become incapacitated.

What happens without a Power of Attorney?

If you do not have a Power of Attorney and lose the capacity to look after your own affairs, it is likely that a guardian will have to be appointed. Appointing a guardian is a lengthy and expensive process involving the courts. Also, there is no guarantee that the guardian appointed would be somebody you would choose to look after your affairs.

In addition, a guardian is usually appointed for a set period which means that the appointment has to be renewed before a previous appointment expires thus incurring additional cost. Also, the guardianship order will outline the powers the guardian has, and these might be either more or less restrictive than if you had granted a Power of Attorney yourself.

What should you do to protect your interests?

Clearly, if you wish to avoid the expense of a guardianship and have the benefit of appointing someone yourself, then the best course of action is to plan ahead and draw up a Power of Attorney.

We have many years of experience advising clients on drawing up Powers of Attorney. If you want to plan ahead and consider drawing up a Power of Attorney, please contact Stacey Parker on 01383 629720 or email Stacey by clicking here.

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