23 November 2020

Power of Attorney and COVID-19

The COVID-19 pandemic has had a huge impact on all facets of society. During these challenging times, the legal sector has had to adapt and revise the ways in which it delivers services. The extent of these adjustments – many stemming from the new Coronavirus (Scotland) Act 2020 – vary across different practice areas. In most cases, the service itself has not been altered, but the way the service must be executed has changed. This includes the setting up of a Power of Attorney.

The solicitors at Legal Services Agency are well equipped to answer any questions you may have on Power of Attorney, including how they could benefit you and how to start the process. If you wish to contact any of the solicitors, please email or call the number on the website or fill out a form on the live web chat you can find on the homepage. This article aims to give a brief overview of Power of Attorney and highlight the changes in place on making an application in light of COVID-19.

The Importance of Setting up a Power of Attorney 

A Power of Attorney is a legal document that lets you, “the Grantor”, appoint another person, known as “the Attorney”, to make decisions and act on your behalf. It is common for people to choose to set up a Power of Attorney whilst they still have capacity and the chosen Attorney can exercise his or her powers when it becomes appropriate to do so. For this reason, it can be useful to set up a Power of Attorney if you live with mental ill health, a brain injury or have been diagnosed with a progressive illness such as dementia or alzheimers. For example, someone with mental ill health may go through intermittent periods of instability where it would prove useful for a trusted Attorney to be able to conduct their affairs in the meantime. Or, an individual with a dementia-related health condition may find their position worsening to the point they are unable to make their own decisions and manage their own finances or welfare.

The importance of setting up a Power of Attorney should not be overlooked. One of the benefits of having an Attorney is that it is generally a more informal way to gain control over your affairs. They do not require lengthy and expensive application processes and can easily be arranged through a trusted solicitor. Some individuals may also qualify for legal aid to cover some or all of the costs – this is something you could discuss with your solicitor.

One alternative to a Power of Attorney would be your friends or family applying for a Guardianship Order. However, this is often a more expensive and time-consuming process which involves more steps and can only be done when you are deemed to no longer have capacity to manage your own affairs. Powers of Attorney offer a more straightforward way to appoint someone to make decisions on your behalf as opposed to other means.

Types of Power of Attorney

There are different kinds of Powers of Attorney that you can choose to set up. The most common type of Attorney is called a “Lasting Power of Attorney”, also known as a “Continuing Power of Attorney.” Under this type of Attorney, you can appoint someone to make decisions on your behalf, on a continuous basis, about your money and property.

Having a Continuing Power of Attorney to make decisions about issues such as your money and property may include things like paying bills, dealing with bank accounts, sorting through your benefits, sorting out your pension or dealing with the selling or repairing of your property. This type of Attorney can be triggered through a time of your choosing such as when registered, or, otherwise, from the point you no longer have capacity.

Another type of Attorney is known as a Welfare Power of Attorney. This deals with issues such as arranging medical, social or personal care for you.  If you do not have capacity, your Welfare Attorney can consent to such treatments on your behalf. Unlike the Financial Attorney, this type of Attorney can only be triggered when the Grantor lacks capacity. The decision as to when this happens can be left to the trusted Attorney, often a close friend or family member, or else a GP can decide the threshold for incapacity. This ensures that, if able, an individual still has the ability to make his or her own decisions and does not sign over their autonomy the moment they establish a Welfare Attorney.

Whilst it is important to consider setting up a Power of Attorney at any time, the current COVID-19 situation has put these sorts of issues at the forefront of people`s minds. This is especially true during a time where many are self-isolating and perhaps cannot leave the house to attend external appointments or sign documents in person. It is important to consider the risk of being put in a vulnerable situation where, without a registered Attorney, there is no immediate legal basis for a trusted friend or family to begin managing your affairs. Having a Power of Attorney can allow you peace of mind that, when necessary, someone you trust has a legal right to step in and organise your finances or welfare.

COVID-19 Changes

As for the changes to the Power of Attorney application process, the usual set-up, whereby a solicitor would visit a client a number of times in person, is not possible given the current circumstances. Instead, there are other means available to ensure the process can still be carried out. The Law Society has issued guidance on this. Solicitors are able to utilise technology in order to work remotely and use electronic means to speak with clients either through a phone call or video call, or, in some cases, through a socially distanced meeting.

First of all, your solicitor will provide you with the necessary documents either via post or as a PDF through email. The role of the solicitor is to interview the person creating the Power of Attorney and confirm they have the capacity to do so. Once this has been assessed and the solicitor is satisfied of your capacity, the next stage is to sign the relevant documents. Normally, this would be done in person. Instead, the solicitor will assess the best method of signing the documents. If a socially distanced meeting is not possible, then this will likely be done via video call using Skype, Zoom or FaceTime for example. This allows the Grantor to be interviewed and show that the documents are yet to be signed and once satisfied, the Grantor and the witness (a friend or family member) can proceed to sign and return the hard copies of the documents as quickly as possible to the solicitor who can complete the application process.

Although a departure from the traditional process, the new method still allows for a Power of Attorney to be executed fairly efficiently given the current circumstances.

Christie MacColl
Mental Health Team