Introduction
This article explains the position of Powers of Attorney in Scotland. If you are looking for information on Powers of Attorney in England and Wales, click here. The English PoA forms are also available from this link.
Powers of Attorney in Scotland are dealt with under the Adults with Incapacity (Scotland) Act 2000.
There are a number of PoAs, each suiting different circumstances:
- general power of
- continuing Power of
- welfare Power of Attorney
- continuing welfare power of Attorney
What is a power of attorney?
A power of attorney is a document in which you appoint someone you trust to look after your affairs. The person you give the power to manage your affairs is called your attorney. You will be called the Granter.
Powers of attorney allow you to have maximum say in what happens if one day you can't make decisions yourself. Until that time, you are in control.
The Act makes it possible to have two powers of attorney. You can have one for your financial matters (a continuing power of attorney) and one for your personal welfare (a welfare power of attorney). You don't have to choose the same person to do both.
The Key Principles
The legislation is based upon five key principles:
- the right of every adult to make their own decisions. They must also be assumed to have the capacity to make such decisions unless it can be proved otherwise;
- the right for individuals to be supported to make their own decisions;
- individuals must retain the right to make what might be seen as eccentric or unwise decisions;
- anything done for or on behalf of people without capacity must be in their best interests;
- anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms.
Who can grant a PoA?
A person can grant a power of attorney only if capable of understanding what he or she is doing. No-one, not even close relatives, can arrange power of attorney for someone else, so it must be done while you are able to express your own wishes.
Choose to have your attorney help you now, or later on
You can authorise your attorney to act for you whilst you are still able. You might want to do this for convenience.
If you want the power to continue in the event that you lose capacity, you must state this in the power of attorney document. Otherwise the attorney will not be able to act for you. You can specify that the attorney can only make use of the powers after a particular event, for example, if your doctor certifies that you have become mentally incapable of managing your finances. This provides extra protection to you and support to your attorney, who may find it hard to decide whether or not he/she should take over particular tasks.
A continuing power of attorney must be registered with the Office of the Public Guardian before it can be operated, even while the granter has capacity.
Types of PoA: which is best for me?
- Powers relating to the Granter’s finances and or property affairs are known as “continuing powers”. Continuing powers can be granted immediately, or can take effect only upon the Granter’s incapacity – you choose. You could require that your attorney:
- pays bills
- collects you pension and other money due to you
- deals with bank or building society accounts
- has access to financial information from your bank and other financial bodies
- buys and sells investments and other property, including houses
- signs documents and enters contracts
- brings or defends legal actions, for example, in the case of an accident
- makes gifts of specified amounts to named people
A continuing attorney cannot:
- make a will for you;
- make gifts to him or herself or to anyone else, unless specifically authorised to do so;
- appoint a successor; or
- do anything the power of attorney document does not list
- Welfare powers are granted so that the Attorney can make decisions about the Granter’s health, personal issues and general welfare. Welfare powers cannot be exercised until such time as the Granter has lost the capacity to make these decisions. Granters have scope to grant whatever powers they choose, however as these powers will be strictly interpreted, the Granter should ensure that the powers granted are specific and cover all the relevant aspects of their affairs.
- A continuing and welfare PoA can be combined into one document. This would be most appropriate where the Granter only wishes for the Attorney to take control upon their incapacity.
- General Powers of Attorney are used as a temporary measure – for example, if the Granter will be in hospital for a number of months, or if the Granter goes abroad for an extended period.
How do I create a power of attorney?
You need a written PoA document which sets out the precise powers that the Granter wishes the attorney have. The document must be signed by the Granter. It must also state clearly that the powers are continuing, welfare or a combination of both. The document must also include a statutory certificate signed by a solicitor registered to practice in Scotland, a member of the Scottish Faculty of Advocates or a medical practitioner which confirms that:
- they have interviewed the Granter immediately before he/she signed the power of attorney document;
- they are satisfied that the Granter fully understands what he/she is doing and the nature and extent of the powers he/she is giving;
- they have no reason to believe that the Granter is acting under any undue influence.
Where welfare and continuing powers are conferred, a separate certificate will be required for each.
How long will it take?
This depends mainly on how many other PoAs the Public Guardian office has to deal with. You can speed up the process by:
- completing a ‘Public Guardian’s registration form’. This form is included with the Scot Lawman PoA documents.
- include all other required documentation in one go, along with a cheque made payable to "The Scottish Court Service". The current fee is £60.
- do not attach staples to any of the papers you send
- do not send us double sided registration forms or Power Of Attorney documents
- provide a covering letter
- ensure covering letters are A4 size if possible
- do not bind POA pages together
- do not place registration forms or POA’s in plastic wallets
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