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This document is a power of attorney for use in Scotland. If a person wishes to create a power of attorney in England and Wales, they must use a different procedure and a different document. Furthermore, individuals living in Northern Ireland must also use a separate document.
A power of attorney is a document within which one person (known as a granter) will provide written formal authority to another person (an attorney) to act on their behalf in relation to specific matters. It is possible to appoint more than one attorney, and many granters will choose this approach to guard against the risk of the power of attorney being invalidated when one sole attorney is no longer in a position to act. This document is designed for individual use, and not by a commercial granter.
Types of Powers
In Scotland, there are different types of powers of attorney:
It is also possible to create an ordinary power of attorney in Scotland. An ordinary power of attorney is usually granted: for a limited period of time; when the granter has capacity; and generally is used within commercial matters. It should be noted that this type of power of attorney is not an ordinary power of attorney.
Limitations on Powers
There are certain types of acts which cannot be carried out by an attorney. For example, attorneys may not:
More details about the acts which cannot be carried out by attorneys may be found in the Adults with Incapacity (Scotland) Act 2000 and in the guidance provided by the Public Guardian.
The granter should be an individual (not a corporate body) who is:
The granter will have considered all the relevant information prior to making their power of attorney such as:
More information about the legal definition of incapacity can be found in the code of practice.
Requirements and Duties of Attorneys
The welfare attorney or a continuing attorney should:
It is technically possible for a corporate body to be a continuing attorney, however, this document has been designed for use where all attorneys are individuals.
The code of practice sets out some important specific duties which all attorneys have. It is also useful to consider the details in the code regarding the liability of attorneys. A granter and the prospective attorneys will have carefully considered these.
How to use this document
This document will be completed with the granter's relevant information and choices about their power of attorney. The granter will make sure they are content with the document.
Once the granter has finalised the document, a singing meeting should be held, where the granter will be interviewed by a qualified professional immediately before the document is signed. The professional may be:
The qualified professional will confirm that the granter understands the document and will confirm that they have no reason to believe that the granter is acting under undue influence. They will complete a certificate which should be attached to the document at Schedule 1.
The granter will then sign the power of attorney in the presence of a witness. The professional who has completed the certificate will often act as the witness. A person should not act as a witness if:
The document must then be registered. This can be achieved via the Office of the Public Guardian (Scotland).
Adults with Incapacity (Scotland) Act 2000
Adults with Incapacity (Certificates in Relation to Powers of Attorney) (Scotland) Regulations 2008
Code of Practice for Continuing and Welfare Power of Attorneys
Requirements of Writing (Scotland) Act 1995
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Other names for the document: POA Scotland, Scottish POA, Welfare Power of Attorney Scotland, Continuing Power of Attorney Scotland, Property and Finances Power of Attorney Scotland
Country: United Kingdom