Looking after your interests when you are no longer able to

Incapacity can happen to anyone at any time and at any stage in their life. This could be due to accident, illness or injury. Who will manage your personal and business affairs if you suffered from such a debilitating condition? Not you as you are incapacitated!

When you have tried to contact a large organisation such as a bank or building society, utility company or internet service provider on behalf of someone else and even if the enquiry you wish to make is relatively simple there is a good chance you have probably been given the same answer and encountered the same problems. “We are sorry, we can only discuss those details with the person named on the account due to the requirements contained within the Data Protection Act”.

Designed to protect you, such “protection” will actually become a major problem for you and will manifest tenfold in the event of your incapacity.

Who will manage your personal and business affairs if you suffer from a stroke, accident, Alzheimer’s, brain haemorrhage, dementia or any other debilitating condition?


Not you as you are incapacitated!

Who will withdraw money from your bank account to pay your bills, write a cheque, and manage your investments or other important documents on your behalf? Do you own a business and if so what will happen to it, who will run it or will it just go under?

It is a common misapprehension that your spouse, partner or other next of kin will automatically look after your personal or business affairs and your welfare. This is simply not the case.

If there is no Power of Attorney in place then whoever your representative is that is going to deal with your personal and business affairs, whether it be your spouse, partner or other family member, will face a lengthy court process, which will certainly take months (approx. 12 months) and sometimes even years. Such a course will also result in substantial legal costs (many thousands).

Any such actions, costs and associated problems can be avoided by putting a Power of Attorney in place right now and this will act as insurance in the event you become incapacitated.

You can ensure that someone who you have chosen and whom you trust has the written authority to look after your financial and welfare requirements. The attorney can be your spouse or partner, your children and other family members, a friend, a professional or anyone else that you trust.

If you become incapacitated and you later recover then you simply resume looking after your own affairs as normal.

Along with writing a valid Scottish, preparing for the worst may prove to be one of the best things you can do. It will save your family and friends a lot of stress and unnecessary expense at a time when they need it least.

The relevant provisions are contained within the Adults with Incapacity (Scotland) Act 2000 (as amended). The type of Power of Attorney will depend on the individuals own particular circumstances and the specialist advice you will receive from Willtrust Ltd will prove reflect this. A person may need help only with their financial affairs or they may require a greater degree of care and assistance, such as helping with issues relation to their personal welfare. There are generally four types of Power of Attorney available in Scotland under the relevant Act. These documents can be summarised as follows:

Simple Power of Attorney

This may be used to delegate certain powers for general or specific purposes depending on how the Powers of Attorney was drafted. Typically used when someone is abroad for a substantial amount of time or be used for limited, routine financial transactions when an adult or minor are unable to manage their daily financial affairs

Continuing Power of Attorney

Such a Power of Attorney can be useful when a person needs help with their financial affairs now and to put their affairs in order or they may be worried about being able to make such decisions in the future.

Welfare Power of Attorney

Continuing Power of Attorney deals with an individual’s financial affairs concerning property, money and other assets. A Welfare Power of Attorney is used to give someone the authority to make decisions on your behalf regarding your health or personal welfare.

Continuing and Welfare Power of Attorney

This particular Power of Attorney is normally drafted to authorise your desired attorney to manage the whole of your affairs, including both the financial and welfare aspects of your care and the authority contained within this Power of Attorney are similar to those granted by a Continuing Power of Attorney and a Welfare Power of Attorney combined.

Once the correct documents have been completed all Continuing and Welfare Power of Attorneys must be registered with the Office of the Public Guardian (Scotland) who maintains a Public Register of such documents. The Public Guardian also has a statutory obligation to notify the appropriate local authority and Mental Welfare Commission of any welfare powers of attorney that have been registered.

To receive qualified and ethical advice in relation to any aspect of your Scottish Will-Writing and Estate Planning requirements, please visit our contact page.