The BBC have recently reported on the case of brothers, Hugh, Roderick and David McCulloch who were swindled out of a family farm by a former Church of Scotland Minister and a local businessman who were acting on behalf of the brothers through a Power of Attorney granted by them. The family of the brothers say that they were ‘groomed’ into granting the Powers of Attorney which left them in a vulnerable position. Following a civil court case brought by the brothers’ family, the court found that the Attorneys had exerted undue influence over the brothers leading to the transfer of the family farm. Whilst this is an extreme example of attorneys gone rogue, acting in their own interests as opposed to the interests of the granter of the Power of Attorney, it highlights the importance of choosing the right attorney.
What is a Power of Attorney?
A Power of Attorney is a legal document which appoints a person or people to make important decisions on your behalf usually where you are unable to take those decisions for yourself. A Power of Attorney can grant powers in favour of your chosen attorneys to make medical decisions on your behalf or to manage your finances if you are unable to.
What do I need to consider when putting a Power of Attorney in place?
When putting a Power of Attorney in place, the key elements of the Deed can be covered in four simple questions:
Who your attorney should be – As the case of the McCulloch brothers highlights, appointing someone as your attorney is an incredibly important decision. Ultimately your chosen attorneys will have the power to make decisions for you if you were unable to make them for yourself. It is therefore important that you appoint someone you have complete trust and confidence in who will act in the way you would yourself if you were the one making the decisions. You can have primary attorneys and substitute attorneys if you like, for example, you may wish to appoint your spouse but also your children.
What powers your attorney should have – You should think about whether your attorney should make decisions about (a) your welfare, health and care needs; (b) your financial affairs; or (c) both of these combined. The power of attorney will list the specific powers you are giving to your attorneys. It is advisable to include as many as possible as if there is something that they are not specifically given the power to do but later find they need it, it is a much longer and more expensive process to resolve it.
When do the powers become active? – Once a Power of Attorney is in place, your Attorney can help you with the financial elements from day one should you wish, but only with your permission. The welfare side will only come into effect once it has been deemed that you have lost capacity. Some clients do not feel comfortable with their Attorneys having the ability to exercise financial powers whilst they still retain capacity. If this is the case, we can include a ‘trigger’ clause in your Power of Attorney meaning that, as with any Welfare powers, financial powers could only be exercised if you were unable to personally exercise them yourself.
How should your capacity be determined? Thought should be given to who is responsible for determining when you have lost capacity to make your own decisions: should this be your attorney(s) using their own judgement, or would you prefer for a doctor to certify this medically?
We can help guide you through the process and advise you on what is best for you based on your needs. At Balfour + Manson we often liken a Power of Attorney to an insurance policy: we go through our lives hoping to never need it, but if and when you do, you and your loved ones are protected.
If you would like to get more information on putting a Power of Attorney in place, please contact a member of our Private Client Team, or if you need assistance with any disagreements arising our of a Power of Attorney, please contact a member of our Dispute Resolution Team.
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Dylan Mitchell
The importance of choosing the right attorneys
The BBC have recently reported on the case of brothers, Hugh, Roderick and David McCulloch who were swindled out of a family farm by a former Church of Scotland Minister and a local businessman who were acting on behalf of the brothers through a Power of Attorney granted by them. The family of the brothers say that they were ‘groomed’ into granting the Powers of Attorney which left them in a vulnerable position. Following a civil court case brought by the brothers’ family, the court found that the Attorneys had exerted undue influence over the brothers leading to the transfer of the family farm. Whilst this is an extreme example of attorneys gone rogue, acting in their own interests as opposed to the interests of the granter of the Power of Attorney, it highlights the importance of choosing the right attorney.
What is a Power of Attorney?
A Power of Attorney is a legal document which appoints a person or people to make important decisions on your behalf usually where you are unable to take those decisions for yourself. A Power of Attorney can grant powers in favour of your chosen attorneys to make medical decisions on your behalf or to manage your finances if you are unable to.
What do I need to consider when putting a Power of Attorney in place?
When putting a Power of Attorney in place, the key elements of the Deed can be covered in four simple questions:
We can help guide you through the process and advise you on what is best for you based on your needs. At Balfour + Manson we often liken a Power of Attorney to an insurance policy: we go through our lives hoping to never need it, but if and when you do, you and your loved ones are protected.
If you would like to get more information on putting a Power of Attorney in place, please contact a member of our Private Client Team, or if you need assistance with any disagreements arising our of a Power of Attorney, please contact a member of our Dispute Resolution Team.
Original BBC News article available here: https://www.bbc.co.uk/news/articles/c5yrjg3np52o