We’ve had a few conveyancing clients asking what are their options if they are unable to sign documents or access money if they are in bed with the Coronavirus. The situation is potentially so extreme and so unprecedented, that there will undoubtedly have to be a degree of flexibility on all sides as this crisis unfolds, but we’re not there yet, so if you were unable to sign a time-sensitive document today, there could be a problem.
We have already moved to limit person-to-person contact by conducting business remotely whenever possible. Where we require a signature from you, we are posting documents and asking you to return them to us in the same way. Even if you are in bed, you are legally able to sign a document as long as you are capable of understanding and remembering what you have agreed to do.
You could create a ‘Continuing Power of Attorney’ (POA) and give someone you trust the ability to help manage your finances and property if you are unable to do so. However, as a reaction to Coronavirus, it is not so much ‘belt and braces’ as ‘belt, braces and superglue’. POAs are currently taking up to fifty-five working days to register with the Office of the Public Guardian Scotland (OPGS) – but remember the OPGS could have staff off with Coronavirus, so slowing down their response times.
A POA is an excellent tool and one of the key documents (along with a Will) that we recommend all clients put in place. The best time to put both a POA and a Will in place is now. If the coronavirus has made this more of a priority for you, we’re here to help. Below is some information on POAs, and you can read more about Wills and other personal legal tools using the drop down menu under ‘personal life’ on our website main menu. You can also access information on POAs from the Alzheimer Scotland website, or read this case study that featured in our February newsletter.
What is a Power of Attorney?
A POA is a legal mechanism by which you can give another person or people the ability to act on your behalf when you are unable to do so.
In Scotland, there are two different types of Powers of Attorney:
- ‘Continuing POA’ – allowing someone to look after your money and property
- ‘Welfare POA’ – allowing somebody to make medical and care decisions for you
You can make a POA for either financial matters or personal welfare, or both.
Who can I appoint as my Attorney?
You can appoint one person to make all decisions, different people for financial matters and personal welfare. You can appoint joint attorneys, so two or more people have to agree on the best way forward. You can appoint substitute attorneys if your first choice isn’t available.
You can appoint a relative, friend or professional to be a POA, but it must be somebody you trust. You should seek agreement from whoever you choose to ensure they are willing to act on your behalf.
When can my POA be used?
You can write a POA at any point in your life, but the key thing to remember is that is only comes into force when you are unable to make decisions for yourself. Your POA would come into force if you were in a coma, but would cease to function whenever you wake up.
Only YOU can create a POA but you need to be ‘capable’ of understanding what you are doing. Broadly this means you have to be able make a decision, communicate a decision, understand a decision and retain a memory of a decision. If you cannot, then only the courts can grant a POA on your behalf.
A welfare POA can only be used if you are incapable of making your own decisions. However, a financial POA can be used with your permission if you need help managing your money. So if you are elderly and frail you could use a POA to give somebody you trust permission to access your bank account to pay bills or buy shopping.
How long does it take to register a POA?
In Scotland, a POA is registered with the Office of the Public Guardian. The OPGS aim to process registration in 30 days, but understandably this is taking longer at the moment. Under certain circumstances, a faster turnaround time can be granted, but only if the OPGS agrees.