good life, good death, good grief

The Reluctant Planner's Guide to Death and Dying

Power of Attorney

In a previous job, one of my tasks was to collect emergency contact details for the older people we worked with. Sadly, as with so many old folk these days, there wasn’t always a family member nearby. “Well I suppose it’s so-and-so, she has my power of attorney,” would be a common answer.

Like many legal and technical matters, I understood that basic concept - “attorney” - but didn’t fully grasp its significance or implications. To me, it just meant “someone who can look after your affairs if needed.” And at the basic level it is, but it’s a bigger deal than I thought, as I found out by talking to lawyer David Borrowman of Solicitors for Older People Scotland.

“It’s the one thing I would urge everybody to do,” says David, before explaining some very good reasons why.

Your attorney is the person you would like to act on your behalf in the event that you’re unable to. You could be housebound and need someone to go to the bank for you – a simple matter of convenience. Or you could be critically ill and need someone to communicate your wishes for medical intervention – a literal matter of life and death.

You may assume, as I did, that your partner or children can automatically make decisions on your behalf as your next of kin. Not so. Next of kin has no relevance to Power of Attorney. You could be incapacitated in hospital, your family adamant that you would rather be at home, but without Power of Attorney being granted, they have no authority to take that decision on your behalf.

Not having a Power of Attorney can therefore be horrendous. The potential distress to families of being unable to act for their loved one is immense, and the financial cost can be astronomical. Without Power of Attorney, the only recourse is to apply for Guardianship through the courts, which costs many multiples of the cost of setting up a Power of Attorney, not to mention the time and uncertainty.

So while it does cost a couple of hundred pounds to set up a PoA (though some people on low incomes are entitled to financial help - worth a check via the Scottish Legal Aid Board), the alternative is a lot worse. “It’s like an insurance policy,” says David. “You hope it’s never used, but it’s there if you need it.”

I need no more convincing, so where do I sign up?

“Go and see a lawyer,” says David. “You can do a DIY Power of Attorney, but it needs to be certified [typically by a lawyer] anyway, and most lawyers charge for certification. For not much more money, you get much more of a service.”

There are actually two different Powers of Attorney to set up – “continuing” for property or financial powers and “welfare” for powers over healthcare and wellbeing. A Power of Attorney document normally covers both of these, and once complete, needs lodging with the Office of the Public Guardian (Scotland) to be effective.

Some advice out there says keep your Power of Attorney with your lawyer until it’s needed to save the Office of the Public Guardian registration fee, but David argues this is not only a false economy, but potentially a catastrophe.

“Once in every wee while, the Office of the Public Guardian will not accept a Power of Attorney registration - if there’s a name spelt wrong for example. In that case, it is better to know now, than to find out when you really need to use it. If it is defective and you seek to register it after the person has lost capacity, it can’t be registered, nor used. And of course the person who has lost capacity can’t do another one. You have the worst of all worlds – you’ve paid for a POA which doesn’t work and someone has to go to court to become a guardian.”

OK, so I now know how to make my PoA. But who to actually make attorney? What to consider? It’s not a decision to take lightly. The obvious candidate is my fiancée Jo.

“Being an attorney is an active role,” David advises, speaking with first hand experience of being an attorney. “He or she can’t afford to be a shrinking violet. They may need to step in and be forceful to get what you want done.”

Yep, that’s still Jo. She wouldn’t take any nonsense if she thought I needed help.

But I’m advised to have a back-up, in case Jo can’t do it. My infant daughter is out of the question for now, though I’ll be able to add her when she comes of age. So who else?

“People select their parents, but bear in mind they’ll usually die first,” cautions David.

For me, my sister is the next obvious person. Then, because an accident could befall an entire family, I have in mind a good friend of mine, who also happens to be training to be a Catholic priest. A double benefit – he can perform the last rites while telling the medics they can switch off the life support.

I speak to all three of them, to see if they’re happy to take the responsibility. They all accept a little too eagerly for comfort…

Because that’s another common fear about granting Power of Attorney. Aren’t I putting my life in the hands of these people? What if we fall out? Could they siphon off my money? Could they get something horribly wrong?

Of course, common sense says you don’t grant power of attorney to errant family members with an axe to grind, but in any case, there are very strong legal restrictions on what attorneys can actually do.

“They are required by law to do what you would have done yourself. They have to act according to your last known wishes,” explains David. So no hastening grandma’s demise to get your hands on the inheritance. If she would want to stay alive, it’s incumbent on you to act accordingly.

For that reason, it is usually a good idea to specify your wishes at the same time as doing your Power of Attorney - an Advance Directive being the term for your medical wishes.

For me, that requires some more thinking, so I’m not in a position to do anything yet. But I’m clear who I want to give my Power of Attorney to, and clear it should be top priority.

“I’d advise doing all three [a will, an advance directive, and a POA] at once, but if you’re only going to do one, do a Power of Attorney because that’s the one that will be most help.”

Further Info

My Power of Attorney - Scottish campaign to raise awareness of POAs

Office of the Public Guardian (Scotland) - How to register your POA

UK Government - POA info for those in England and Wales

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