Power of Attorney (Scotland)

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:

• Continuing powers of attorney. These give the power to 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 prior to this.
• Welfare powers of attorney. These give the power to 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.

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:

• 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 Public Guardian.

The Granter

The granter should be an individual (not a corporate body) who is:

• An adult (aged 16 or over); AND
• Not be incapable.

The granter will have 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
• when any continuing powers will commence

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:

• be an individual
• be least 16 years old
• not be incapable

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:

• a practising solicitor
• a practising member of the Faculty of Advocates
• a registered and licensed medical practitioner.

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:

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

The document must then be registered. This can be achieved via the Office of the Public Guardian (Scotland).

Applicable Law

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

Help from a lawyer

You can choose to consult a lawyer if you need help.

The lawyer can answer your questions or help you through the process. You will be offered this option when you complete the document.

How to modify the template

You fill out a form. The document is created before your eyes as you respond to the questions.

At the end, you receive it in Word and PDF formats. You can modify it and reuse it.