With solicitors presently experiencing an increase in people attempting to get their affairs in order, Thomas Bradley and Co is enouraging clients to gain peace of mind by granting power of attorney to a trusted family member. By Colin Cardwell

One of the most enduring myths that humans perpetuate is that of the indestructability of their nearest and dearest: parents, grandparents and friends. True, life expectancy in the UK has increased steadily for decades, though the Office for National Statistics points out that it has significantly levelled off since 2011. 

And the current pandemic has jolted us all into a new sense of urgency, with increasing numbers deciding to make a will – a rise accompanied by a new interest in the power of attorney, which anticipates the possibility that someone, for reasons of age or health, may have to allow another to deal with their affairs. 

Scott Ewart, managing partner at Glasgow-based legal services firm Thomas Bradley and Co, believes that granting power of attorney is arguably even more important than making a will. 

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“Someone losing capacity without having appointed an attorney – someone who can formally act on their behalf – could end up in a terrible situation.

“People often assume that when they write a will and appoint an executor, that person – often one of their children –  will deal with all those issues including power of attorney but that's not the case,” he says. 

“We can advise them about the difference between a will, which takes care of your affairs after you have passed away and a power of attorney that ensures your affairs are taken care of should you lose the capacity to manage them yourself.”

There are two types of power of attorney in Scotland: that relating to financial/property affairs which you can decide to begin immediately or only if you become incapable; and welfare power of attorney, which allows someone to make welfare decisions for you should you lose the capacity to make these decisions.

Incapacity, Ewart points out, can affect the simplest aspects of life. “People tend to think in terms of a crisis, such as someone being affected by Alzheimer’s, but power of attorney can be important for someone who is just struggling physically,” he says. 

“I think of my grandmother who at  86 is mentally as sharp as a tack but set up a power of attorney as through illness she simply wasn’t able get out to take care of basic essentials such as going to the post office for her pension. Someone may also need their son or daughter to make sure gas or electricity bills are looked after and that the shopping is done”. 

Which means that the person granted powers of attorney must be someone you can trust implicitly – and someone who also feels comfortable with acting formally on another’s behalf. Some people find it difficult to discuss with a parent that they face losing capacity through an illness. 

"So the right person isn’t just someone you trust but someone who can also handle the potential emotional stress of a being an attorney,” he says. 

Appointing an attorney can be a sensitive matter but the person granted power can subsequently be altered. “People can and do come to us after several years – and after circumstances have altered – to change the person in whom power of attorney resides or add someone else, but most people tend to appoint their children or grandchildren,” he says.  

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“And they try to share the responsibility between two or three people, making the person best able to deal with their affairs the primary attorney, with one or two substitutes. 

“If there are no substitutes in place and the principal attorney passes away or moves to another country after the person who has appointed them loses capacity then no one else can be appointed,” he adds.

The Office of the Public Guardian (OPG) provides the registration service for powers of attorney and can help people who have no knowledge of what’s involved. Ewart explains: “There’s a lot of  support for the many people who initially have no idea what to do and the OPG ensures that people who grant powers of attorney or put them in place are protected and that trust companies are doing their job properly. 

“It receives a one-off fee for that and is always there to give general advice on what you should or shouldn’t do, though if legal or financial advice is needed you should consult an appropriate adviser.”

And while it’s possible for an individual to set up a power of attorney, Ewart says it’s a complicated process that involves solicitors and GPs  ensuring that multiple documents are signed off correctly by the person's family members. “Engaging a professional who can complete the process online removes the most onerous part of the exercise, making sure it’s dated, checked and signed off correctly and most importantly, that it’s registered, he says. 

The company has seen a significant increase in requests for powers of attorney: “It’s becoming a priority for more people and 60% to 70% of the people we talk to about wills every month now set up a power of attorney at the same time.”
He says that while this does not represent a major financial decision, many people are seeing  their incomes squeezed at the moment so Thomas Bradley is currently halving its price for the service.   

“While recognising that – like every other company – we must make money I feel we have an obligation not to have profits solely in mind at the moment and offer a service that’s  affordable. If we’re going to do something positive for the community, now is the time to do it.” 

thomasbradleyco.co.uk