I was Public Guardian for Scotland and not having power of attorney is like having no home insurance
Sandra McDonald, chair emeritus of the Dementia Trust, explains why having a power of attorney to look after a loved one’s interests if they cannot is so important
“I wish we had power of attorney.” It’s a phrase I’ve heard countless times over the years, from disheartened people surprised to learn they can’t make decisions regarding the care of their parents, from defeated spouses sitting in hospital corridors, and sometimes even from legal professionals, all bound by the limits of what they can do to help when it becomes too late.
In Scotland, we have two main kinds of power of attorney, which legally authorises someone to act on another person's behalf if they lose the ability to do so. Continuing power of attorney which covers financial and property matters and welfare power of attorney which covers healthcare decisions. These are often both granted in a single combined document.
Yet under one in ten Scots currently have a registered power of attorney in place, leaving the majority of the adult population unprepared and at risk. It’s the legal equivalent of having no home insurance and discovering you’ve been burgled or becoming ill in a foreign hospital with no health cover, and the consequences of not being prepared are immediate and deeply felt.
Devastating consequences
Yet these stories don’t have to end in frustration. With the right information and support, families can make sure that important decisions are made with care and dignity, and protect those they love most. Sadly, for so many, that moment of realisation comes at the time of a crisis, when they assume they will be able to make decisions on behalf of their loved ones but discover that, in the eyes of the law, they cannot.
The consequences of this can be devastating. Every day, families across the country find themselves in crisis, trying to support a loved one and navigate complex and emotional situations without any legal authority to act. The alternative is to apply for a guardianship order, a lengthy legal process that can be both time-consuming and financially costly. For many, this happens while they are already under immense strain.
There is a wider impact too, as the absence of a power of attorney places additional pressure on Scotland’s health and social care system. Hospital beds remain occupied unnecessarily, which can result in delayed treatment for others, and social workers and healthcare professionals spend their valuable time navigating complex legal applications that could have been avoided.
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False assumptions
So why do we hesitate to plan ahead? For most people, the idea of a power of attorney feels distant – something for old age, illness or “later”, or even something that's unnecessary, because it is assumed your spouse or children will look after things for you if you are no longer able to do so personally.
Yet, unless you have given someone legal authority, by way of a power of attorney, no one, not even your spouse, has the automatic right to make decisions for you when you are unable to make them yourself. That includes decisions about your finances, medical treatment or even where you live.
Cost may be a perceived barrier, though this doesn't always have to be the case. People assume that it is expensive to do a power of attorney, especially if you use a solicitor, but a solicitor can provide peace of mind and ensure due diligence, and often the fee is considerably less than one imagines. There is also the considerable cost of not doing a power of attorney to consider. The financial impact of a guardianship application is around ten times greater, as well as the frustration and distress of trying to fight your corner without any legal position.
Not just about old age
Most of all, I find that people put it off because they assume there will be time. We relate losing capacity or dying to old age, but sadly an illness or accident can affect anyone, at any time.
The forthcoming holiday period, when we often spend more time together, may be the first time you notice worrying changes in a loved one's memory or ability. A parent might seem confused by tasks they once managed with ease, or you may see unopened mail piling up at their home. These small signs can be early indications that it's time to have an open and honest discussion about planning ahead.
So how do you start that conversation? Firstly, it's important to choose the right moment. Putting plans in place while everyone is well makes the process so much easier and, in some cases, can prevent family disputes later down the line. Pick a calm time, not in the middle of a crisis.
Secondly, frame it positively, ensure that it is understood that power of attorney isn’t about giving up control, it's about making sure that the person's wishes are heard and respected.
Lastly, offer to help. The concept of power of attorney can be daunting so offering to look at the forms together or speak to a solicitor can provide much-needed reassurance. Support, not pressure, helps people to feel empowered and not overwhelmed when it comes to legal matters.
Dementia Trust’s ‘Planning Ahead’ initiative
Granting power of attorney is one of the most important steps you can take to protect both yourself and your family. That's why the Dementia Trust has launched its Planning Ahead initiative – designed to encourage families and legal professionals to have these conversations sooner. Working closely with the legal sector, we want to make power of attorney a positive and empowering act for everyone, not just something reserved for later in life.
As we head into another busy festive season, there has never been a better time to think about the future. A power of attorney isn’t about paperwork, it provides vital peace of mind and ensures that whatever happens, your wishes are respected, and your family is protected.
Sandra McDonald is chair emeritus of the Dementia Trust, a former Public Guardian for Scotland, and an expert on capacity and adult rights
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