Power of attorney in Scotland
Plan ahead with a power of attorney
None of us knows what the future holds. An accident, a stroke or an illness such as dementia can leave anyone unable to manage their money or make decisions about their care. A power of attorney lets you choose, now, the people you trust to act for you and look after your money and property if you are ever unable to make decisions yourself.
Our power of attorney lawyers in Glasgow prepare continuing and welfare powers of attorney (often called a POA) for clients across Scotland. We sign the certificate of capacity and register the document with the Office of the Public Guardian, so that it is ready to use if it is ever needed.
What is a power of attorney?
A power of attorney is a legal document in which one person, the granter, gives another person or people, the attorney, authority to act on their behalf. In Scotland, powers of attorney are governed by the Adults with Incapacity (Scotland) Act 2000. There are two main types, and most people combine them in a single document.
Continuing power of attorney
A continuing power of attorney covers your money, property and financial affairs. It can allow your attorney to pay bills, deal with your bank accounts, manage investments and, if you allow it, sell your home. A continuing power can be used while you still have capacity, if you would like help, and it carries on working if you later lose capacity.
Welfare power of attorney
A welfare power of attorney covers decisions about your health, care and personal welfare, such as where you live, the care you receive and consent to medical treatment. A welfare power can only be used once you have lost the capacity to make those decisions yourself. A welfare attorney must be an individual, not a firm.
You can appoint one attorney or several. Many people appoint the same person for both, often a spouse, partner or adult child, with someone else as a substitute in case the first attorney is no longer able to act.
Why every adult should consider a power of attorney
A common misunderstanding is that your spouse, partner or next of kin can automatically step in if you become unwell. In Scotland they cannot. Without a power of attorney, your family may have to apply to the sheriff court for a guardianship order before anyone can deal with your bank accounts, sell your property or make decisions about your care.
Guardianship applications take time, require reports from doctors and a mental health officer, and usually cost considerably more than a power of attorney. Putting a power of attorney in place while you are well is the simplest way to avoid that. If a family member has already lost capacity and has no power of attorney, our guardianship order solicitors can help.
How to set up a power of attorney in Scotland
1. Decide who you trust
Choose your attorneys, any substitutes, and whether they must act together or can act separately. We advise you on the options and the powers you want to include.
2. We prepare the document
We draft the power of attorney to suit your circumstances, including any limits, instructions or wishes you want your attorneys to follow.
3. Signing and the certificate of capacity
When you sign, a solicitor or a doctor must sign a certificate confirming that they interviewed you immediately before you signed, that you understood what you were doing and that you were not under undue influence. As practising Scottish solicitors, we can sign this certificate for you.
4. Registration with the Office of the Public Guardian
A power of attorney cannot be used until it has been registered with the Office of the Public Guardian (Scotland). We submit it for you and pay the registration fee on your behalf. Once it is registered, the document is returned with a certificate of registration and your attorneys can start to use it when it is needed.
An empathetic, friendly and down-to-earth family law service that is also professional and efficient. Book a free 45 minute consultation or call 0141 471 9166.
Your attorney’s duties
Attorneys must follow the principles of the Adults with Incapacity (Scotland) Act 2000. Any decision they take must benefit you, be the least restrictive option, take account of your past and present wishes, consider the views of relevant people such as close family, and encourage you to use any skills you have. Attorneys must keep your money separate from their own and keep proper records. The Office of the Public Guardian supervises continuing attorneys and can investigate if there are concerns.
Powers of attorney made in England, Wales or Northern Ireland
If you have moved to Scotland and already have a lasting power of attorney made elsewhere in the UK, it may still be recognised here. In practice, banks, care providers and other organisations in Scotland sometimes ask for further evidence, which can cause delay at a difficult time. If Scotland is now your home, we usually recommend putting a Scottish power of attorney in place.
How our power of attorney solicitors can help
We are a specialist family law and executry team, regulated by the Law Society of Scotland. We give practical, professional advice and cost effective legal services, and we explain everything in plain English so that you and your loved ones know exactly where you stand.
- Advice on continuing and welfare powers and on choosing your attorneys
- Drafting a power of attorney tailored to your wishes
- Signing the certificate of capacity
- Registration with the Office of the Public Guardian
- Guidance for attorneys on their duties and on using the power
- Revoking or replacing an existing power of attorney
- Guardianship applications where no power of attorney is in place
We often prepare a power of attorney alongside a will, so that your affairs are covered during your lifetime and after it. Find out more about wills and executries, or get in touch to arrange a meeting.
Power of attorney: frequently asked questions
At what age can I make a power of attorney in Scotland?
Anyone aged 16 or over who has capacity can grant a power of attorney. It is never too early, and it can be too late to make one after an accident or a diagnosis.
Can my spouse or next of kin act for me without a power of attorney?
No. Being married, in a civil partnership or someone’s next of kin does not give you legal authority to manage their finances or make welfare decisions for them in Scotland. Without a power of attorney, a guardianship order may be needed.
Can an attorney change my will?
No. A power of attorney does not allow your attorney to make, change or revoke your will. Only you can do that, and only while you have the capacity to do so.
Can I cancel a power of attorney?
Yes. While you have capacity, you can revoke a power of attorney by signing a notice of revocation. The notice must be certified by a solicitor or doctor and registered with the Office of the Public Guardian, and you should tell your attorneys and any organisations that hold a copy.
What if my attorney is not acting in my best interests?
Concerns about a continuing attorney can be reported to the Office of the Public Guardian, and concerns about a welfare attorney to the local authority. Both can investigate, and the sheriff court can remove an attorney where necessary.
How long does registration take?
Registration times depend on the Office of the Public Guardian’s workload. We will tell you the current timescale when we submit your document, which is another good reason not to wait until a power of attorney is needed.
Free 45 minute consultation
Clear, calm advice from our Glasgow family law team. Book online or call 0141 471 9166.
Three Best Rated
We are Family Law specialists in Scotland. With offices in both Glasgow and Edinburgh, we provide legal services across the country. For a Free* consultation with our family lawyers click here.