Establishing a Power of Attorney within your estate plan

Reflecting your best interests when you’re not in a position to do so

The significance of an estate plan transcends the mere distribution of your assets after your demise. Integrating a Power of Attorney (POA) ensures that a trusted individual is empowered to make decisions reflecting your best interests when you’re not in a position to do so.

A POA facilitates the appointment of one or more individuals, known as attorneys, authorised to manage key aspects of your life, including finances, property, medical care and personal health decisions.

Scope of authority
This arrangement becomes particularly vital under several circumstances, such as mental incapacitation, prolonged absences from the country, business management requirements during your absence or the desire to establish specific financial management directives should you become incapacitated.

The scope of authority you can grant to your attorney is extensive, covering areas like banking, real estate transactions and financial account management. It ceases upon your death.

Variations across the United Kingdom
The responsibility and role of an attorney are consistent throughout the UK, yet the nuances of their appointment and the types of POA available differ from region to region. In the context of England and Wales, the individual granting the power is termed the Donor.
To act as an attorney, one must be over the age of 18 and capable of independent decision-making.
Notably, the attorney does not need to reside in the UK or hold British citizenship.

Power of Attorney in England and Wales
In England and Wales, two forms of Power of Attorney exist: Ordinary and Lasting. An Ordinary Power of Attorney remains effective until the donor is deemed mentally incapacitated as per the Mental Capacity Act 2005. At the point where the donor is no longer able to make their own decisions, the document’s authority is terminated.

Conversely, a Lasting Power of Attorney maintains its validity even if the donor becomes incapacitated. This type allows the donor to specify whether the attorney’s role will encompass managing property and financial affairs, health and welfare concerns, or both. Should no attorney be appointed while the donor is still capable, the Court of Protection has the authority to appoint a Deputy to oversee the donor’s affairs.

Navigating Power of Attorney in Scotland
When considering the establishment of a Power of Attorney (POA) in Scotland, the individual making this provision is known as the Granter. Notably, the legal threshold for an attorney’s age in Scotland is set at 16, distinguishing it from other jurisdictions within the UK.

Scotland presents two distinct types of POA: Ordinary and Continuing. An Ordinary POA has its authority cease upon the Granter’s incapacitation, akin to the arrangement in England and Wales. On the other hand, a Continuing Power of Attorney allows the attorney to maintain their authority even after the Granter has become incapacitated.

Choices Between Financial and Welfare POA
In deciding the scope of the POA, Granters must choose between a Financial POA, a Welfare POA, or a combination of both. A Financial POA concerns itself with the Granter’s financial affairs and property management, whereas a Welfare POA grants the attorney the power to make decisions regarding the Granter’s living conditions, medical care and personal welfare.

According to the Adults with Incapacity (Scotland) Act 2000, incapacity is defined by an inability to communicate, make or comprehend decisions. This legislation also requires that attorneys consider the Granter’s wishes and feelings, both past and present, wherever feasible. In instances where a POA has not been established, the Court of Protection will step in to appoint a Guardian for managing the Granter’s affairs.

Legal framework for Power of Attorney in Northern Ireland
In Northern Ireland, the legal underpinnings for POA are provided by the Enduring Power of Attorney Order 1987 and the Powers of Attorney Act 1971. Here, individuals delegating authority are referred to as Donors, and the appointed attorneys must be aged 18 or older. Distinctly, Northern Ireland offers an Ordinary Power of Attorney, which remains effective until the Donor is deemed incapacitated.

An alternative option is the Enduring Power of Attorney, which empowers the attorney to continue overseeing the Donor’s financial and property affairs beyond the point of incapacitation. Unlike Scotland, Northern Ireland does not offer a direct counterpart to the Welfare POA; instead, decisions regarding medical treatment and personal care revert to the Donor’s next of kin, necessitating an Advance Decision for handling personal welfare matters.

Should incapacitation occur without a POA in place, the courts are tasked with appointing a Controller to manage the incapacitated individual’s financial and property concerns.

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