Since the COVID-19 outbreak, the Shepherd and Wedderburn private client team has been hard at work helping clients update their Wills and Powers of Attorney. While we all hope that the worst of this global pandemic is now behind us, recent weeks have brought various localised lockdowns and the expectation of a potential second wave, which may well coincide with the annual flu season. Faced with such circumstances, we would advise that putting a protective Power of Attorney in place is as essential as having an up-to-date Will, the considerations for which we outline in this overview article.

What is a Power of Attorney?

A Power of Attorney is a document that gives authority to someone else to act on your behalf – step into your shoes, so to speak.

We imagine that incapacity creeps up on us, giving us time to consider the possibility of our loss of cognition. In reality, incapacity can assert itself with no notice for any number of reasons, including sudden ill health or a serious accident. In either instance, having a Power of Attorney in place is critical both for the management of your financial and business affairs and for decisions regarding your care and welfare.

There are two types of attorney: a continuing attorney, who can pay your bills, operate bank accounts and generally deal with your assets; and a welfare attorney, who makes decisions on your behalf for care, health and personal matters. The document appointing the attorney sets out a detailed list of powers granted.

It is quite common to have the same attorney act as both continuing and welfare attorney. There is a difference, however, between the appointment of a continuing attorney, who may act on your behalf as soon as the document is registered, and while you still have capacity, and a welfare attorney who, in contrast, may only act if you lose capacity.

As the powers granted to an attorney are considerable, we always advise that you choose your attorneys with care. An immediate family member or a trusted friend is usually the best choice. A trusted professional adviser can also be appointed as a continuing attorney.

What happens if you do not have a Power of Attorney in place and you lose capacity?

It is a commonly held assumption that, as a spouse or next of kin, you will have the right to manage your loved one’s affairs. That is not the case under Scots law. If you lose capacity and have not appointed an attorney to make decisions on your behalf, a Guardian will need to be appointed. This is a court application. Not only is it a time consuming and costly process, it also means that the choice of person appointed by the Court may or may not be the person you would have wished to act on your behalf. At a distressing or at least stressful time, this places further pressure on those around you. There are also ongoing cost and administrative burdens involved in guardianship. Being prepared and having a Power of Attorney in place, particularly in these strange times, is certainly a worthwhile exercise and we are happy to advise you in making the decisions required.

When should you opt for a Living Will?

Sometimes, clients come to see us to put in place a Power of Attorney but, as we progress further into that discussion, it becomes clear that what they want is a Living Will, also known as an Advance Directive. The aim of this document is to advise medical staff of your wishes if there were to come a time when, through incapacity or inability to communicate, you are unable to articulate these wishes yourself. This incapacity or inability to communicate may be due to major stroke, degenerative disease or, as we have seen recently, a serious incidence of COVID-19, and you are at the end of life. The Living Will is there to guide family members and medical professionals as to what life prolonging interventions you do not wish to have. It is not a DNR (do-not-resuscitate order).

In preparing a Living Will, we advise that you let your family and health professionals know you have such a document in place and, should the situation arise, where they can find it. It is not an easy conversation to have but it can relieve those close to you of the burden of making some very difficult decisions.

Living Wills are not legally enforceable in Scotland (in contrast to the position in England) but they are persuasive of your past wishes.

If you would like further advice on this or another related matter, please contact Kirsten McKinnon or your usual Shepherd and Wedderburn contact.