Why Establishing a Power of Attorney with Your Will Matters in Scotland

Angus discusses the importance of establishing a Power of Attorney with a Will in Scotland.

Estate planning is a vital aspect of preparing for the future, ensuring that an individual's wishes regarding the distribution of their assets are honoured. In Scotland, a Will is a widely recognised tool for this purpose. However, many overlook the significance of establishing a Power of Attorney (PoA). This article argues that setting up a PoA in addition to a Will is crucial for comprehensive estate and personal affairs management.

The Role of a Power of Attorney

While a Will is essential for ensuring assets are correctly distributed following an individual’s death, it does not address situations where an individual becomes incapable during their lifetime.

A Power of Attorney is a legal document that grants a designated person (the attorney) the authority to make decisions on behalf of the granter if they become incapable. There are two main types of PoA in Scotland:

1.      Continuing Power of Attorney: Pertains to financial and property matters.

2.      Welfare Power of Attorney: Relates to personal welfare and healthcare decisions.

Why Both Are Necessary

1.      Continuity of Decision-Making: A PoA ensures that decisions regarding finances, property, and personal welfare are made by a trusted person if the granter becomes incapacitated. Without a PoA, these decisions could be made by the court, which may not align with the granter's wishes.

2.      Avoiding Court Intervention: In the absence of a PoA, family members may need to apply for a guardianship order through the courts to manage the affairs of an incapacitated individual. This process can be time-consuming, stressful, and costly compared to a PoA.

3.      Immediate Protection: A PoA comes into effect immediately upon the granter's incapacity, providing immediate protection and management of affairs without delay.

4.      Holistic Estate Planning: Having both a Will and a PoA offers a comprehensive approach to estate planning. It ensures that an individual's affairs are managed according to their wishes both during their lifetime (in case of incapacity) and after their death.

5.      Reducing Family Conflict: Clear instructions in both a Will and a PoA can minimise potential conflicts among family members, by clearly outlining the granter's wishes and naming trusted individuals to carry them out.

At Middleton Ross, we can guide you through the process of making a Will and a Power of Attorney. Please contact us if you wish to find out more or make these documents with us.