Q: I work for an international company and my job means I’m often working overseas for long periods of time. I own quite a few properties and often need to delay any given purchase or sale because I am out of the country and so can’t sign the paperwork.
This also means that I often miss out on various property investment opportunities, which is frustrating. I gather that if I have a power of attorney in place someone could deal with these matters on my behalf when I’m away. Could you please tell me how this would work?
LG Edinburgh
A: I understand your frustration, and having a power of attorney in place is certainly something which could help you in respect of your property affairs.
In Scotland there are two types of power of attorney: a continuing power of attorney and a welfare power of attorney. Having a continuing power of attorney would enable you to nominate an individual to look after your financial and/or property affairs. If you appoint a continuing attorney they can be given power to either act straight away, as soon as the power is registered, or at a later date.
This means that when you are working away from home for long periods of time, your attorney could sign any necessary deeds or documents on your behalf, in relation to the potential purchase or sale of a property or properties. The deed would also grant your attorney the power to buy, lease, sell and otherwise deal with any interest in any property, including the power to insure, keep in good repair, improve, restore and replace any property forming part of your estate.
In addition, your continuing attorney could, for example, open and close bank accounts on your behalf and pay all household expenses. This would provide you with peace of mind that matters are being dealt with when you are out of the country and would also help to avoid any delay in respect of potential investment opportunities.
As well as having a continuing power of attorney in place, you should also consider having a welfare power of attorney.
As the name suggests, this covers matters of personal welfare such as medical treatment.
If you appoint a welfare attorney the attorney would only start to act if you lose capacity or are no longer able to deal with your own affairs as certified by a doctor under the terms of the legislation.
All powers of attorney need to be registered with the Office of the Public Guardian (Scotland) and there is currently a charge of £70 for this. The appointments can be made within the same document if desired.
Should you lose capacity to act on your own behalf and you do not have a power of attorney in place, an intervention or guardianship order could be required and the cost of these can run into thousands of pounds, whereas a power of attorney can be drawn up for a modest cost, along with the registration fee mentioned above.
A final point worth noting is that the value of your property, along with the other assets in your estate, is important when considering any potential inheritance tax charge. There are many ways to mitigate this liability and specialist legal advice should be taken regarding this matter as well as in respect of power of attorney.
• Laura King is a senior solicitor in private client and financial services at HBJ Gateley.
If you have a question you need answered, write to Jeff Salway, ℅The Scotsman, 108 Holyrood Road, Edinburgh EH8 8AS or e-mail: scotsmancash@yahoo.co.uk. The above is for general purposes only and is not tailored for individual use. It does not constitute legal, financial or investment advice on any particular matter and must not be treated as a substitute for specific advice. No action should be taken in reliance of the information given. The Scotsman Publications Ltd and HBJ Gateley accept no liability on the basis of this article.