Power of Attorney (Scotland)

What is a power of attorney?

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. This power of attorney is designed for use in Scotland.

What are the different types of power of attorney?

In Scotland, there are different types of powers of attorney:

• Continuing powers of attorney: this permits attorneys to deal with property and financial affairs on behalf of the granter. Continuing powers can take effect when the granter loses capacity, or the granter can specify that the powers will start on a specified date.
• Welfare powers of attorney: this permits attorneys to deal with personal health and welfare issues on behalf of the granter. A welfare power of attorney may only take effect when the granter loses capacity.

A power of attorney can include both welfare and continuing powers.

There are also powers of attorney available for use in England and Wales and in Northern Ireland.

What is the difference between a will and a power of attorney?

A will is used set out how a person's finances and property will be distributed when they die.

A power of attorney will be used whilst a person is still living, to grant authority to another person to act on their behalf.

What is the difference between a guardianship and a power of attorney?

A Guardian is appointed by the Court. This will be applied for where a person loses capacity and where no attorney has been appointed. A power of attorney is created whilst the granter still has capacity.

Is it mandatory to have a power of attorney?

Yes, a person will need to grant a power of attorney if they would like somebody to act on their behalf in an official capacity.

A power of attorney can be a good idea for future planning. The granter can be reassured that somebody will be able to make decision on their behalf in the future, as appropriate.

What does capacity mean?

Capacity refers to the ability of an individual to make decisions for themselves. The full legal definition of incapacity can be found in the relevant code of practice.

What is not permitted in a power of attorney?

There are certain types of acts which cannot be carried out by an attorney. For example, attorneys may not:

• make or execute a will on behalf of the granter
• carry out the functions of the granter as an employee
• consent to marry on behalf of the granter
• give evidence or sign an affidavit on behalf of the granter
• place the granter in hospital for treatment of a medical disorder against their will
• consent or make decisions in respect of certain medical matters

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 Office of the Public Guardian.

What are the prerequisites of a power of attorney?

A signing meeting must held immediately before the signing of the power of attorney, where the granter will be interviewed by a qualified professional. The qualified professional must complete a certificate which should be attached to the power of attorney. This certificate is already available to print and download online via the Office of the Public Guardian website and is not therefore attached to this document, but a space to attach it is provided at Schedule 1. The Office of the Public Guardian website also provides details to confirm the types of professionals who may complete the certificate.

The granter will have also considered all the relevant information prior to making their power of attorney such as:

• the number of attorneys that they wish to have
• the identity of their attorney(s)
• how their incapacity will be determined
• what types of powers they will grant
• when the powers will be registered

Who can enter into a power of attorney?

The granter (the person making the power of attorney) should be an individual (not a corporate body) who:

• is aged 16 or over
• has capacity

An attorney must:

• be over the age of 16
• willing to act as an attorney
• not be declared as bankrupt
• have capacity

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.

Who cannot enter into a power of attorney?

The granter (the person making the power of attorney) cannot:

• be a child (under the age of 16)
• be a person who does not have capacity

This power of attorney is designed for use where the granter is a natural person (and not a corporate body).

An attorney must not:

• be a child (under the age of 16)
• be declared as bankrupt
• be a person who does not have capacity

What will be the duration of a power of attorney?

A power of attorney will remain in place for the duration of the granter's life, unless it is legally revoked or terminated by the provisions of the relevant laws.

What must be done after the power of attorney has been signed?

Once the power of attorney has been signed in the presence of a witness, following the signing meeting with a qualified professional, the certificate should be attached at Schedule 1.

The power of attorney must then be registered. This can be achieved via the Office of the Public Guardian.

Which documents should be attached to the power of attorney?

A signing meeting will have been held immediately before the singing of the power of attorney, where the granter will be interviewed by a qualified professional. The qualified professional will have completed a certificate which should be attached to the power of attorney. This certificate is already available to print and download online via the Office of the Public Guardian website - a space to attach the completed version is provided at Schedule 1.

Is it necessary to register the power of attorney?

Yes, the power of attorney must be registered. This can be achieved via the Office of the Public Guardian.

Is it necessary for the power of attorney to be witnessed?

Yes. The granter must attend a signing meeting with a qualified professional where a certificate will be prepared. During this meeting the granter must 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:

• they are party to the power of attorney
• they are under the age of 16
• they are incapable
• they do not know the identity of the granter

What is the cost of finalising the power of attorney?

A fee will be payable to:

• the professional who conducts the signing meeting
• The Office of the Public Guardian upon registration

A signing meeting must held immediately before the signing of the power of attorney, where the granter will be interviewed by a qualified professional. The qualified professional must complete a certificate which should be attached to the power of attorney. The authorised professional will advise of their fees in advance of the meeting.

The power of attorney must be registered via the Office of the Public Guardian. The registration fees are set out on the Office of the Public Guardian website.

What legal duties does a power of attorney have?

A attorney must always act within the limits and boundaries of the power of attorney agreement.

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.

What is the Office of the Public Guardian?

The Office of the Public Guardian is assigned to oversee the registration and management of powers of attorney, and generally oversee matters relating to any adult who does not have capacity to manage their affairs.

What must a power of attorney contain?

In Scotland, a power of attorney must contain:

• preliminary legal declarations – these will include information as required by the relevant law and will also confirm that the power of attorney is made in accordance with the relevant legal provisions
• a list of the welfare powers that will be granted (if applicable)
• a list of the continuing powers that will be granted (if applicable)
• an execution clause – confirming that the clause has been signed and witnessed in the correct manner
• a statutory certificate – this will be downloaded from the Office of the Public Guardian website, completed by an authorised professional and inserted in the space provided at Schedule 1
  

Which laws apply to a power of attorney?

The following legal provisions apply to powers of attorney in 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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