What types of power of attorney are there in Scotland?
A power of attorney (POA) in Scotland is a legal document that lets you (the 'granter') appoint someone you trust (the 'attorney') to make decisions for you. This ensures your wishes are followed if you lose the mental capacity to make those decisions yourself.
There are two main types of powers you can grant, which can be given separately or in one combined document.
Continuing Power of Attorney
A Continuing Power of Attorney (CPA) covers your financial and property affairs. This lets your attorney do things like:
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manage your bank accounts
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pay your bills
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buy or sell property on your behalf
You can decide whether the CPA takes effect immediately or only if you become incapable of managing your own financial affairs.
Welfare Power of Attorney
A Welfare Power of Attorney (WPA) covers decisions about your health and personal welfare. This can include:
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where you live (eg in your own home or in a care home)
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your personal care and medical treatment
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what you wear and eat
A WPA can only be used once you've lost the capacity to make these decisions for yourself.
Combined Power of Attorney
Most people in Scotland make a combined POA. This single document appoints an attorney to manage both continuing (financial) and welfare (health) matters. This is generally the most comprehensive way to plan for the future.
Who can make a power of attorney?
Anyone in Scotland who is over the age of 16 and has 'capacity' (ie is of sound mind) can make a power of attorney. Generally, this means they must be able to understand what the document is, what it does, and the consequences of making it.
A person who has been declared bankrupt cannot make a CPA to deal with their financial affairs, but they can still make a WPA for their personal welfare.
What does mental capacity mean in Scotland?
Having capacity means that you're able to make and communicate your own decisions. To 'lack capacity' means you're unable to make, understand, or act on a specific decision for yourself. Under the Adults with Incapacity (Scotland) Act 2000, a person is considered to ‘lack capacity’ or be 'incapable' if, due to a mental disorder or physical disability, they're unable to:
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act on a decision
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make a decision
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communicate a decision
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understand a decision
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remember a decision
This isn't an 'all-or-nothing' concept. Capacity is always assessed for the specific decision at hand. For example, a person might be able to decide what to buy for their groceries but lack the capacity to make a complex decision about selling their home.
Who can be appointed as an attorney?
Choosing your attorney is the most important part of this process. You need to appoint someone you trust completely to respect your wishes and act in your best interests.
Requirements to be an attorney
Your chosen attorney must:
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be at least 16 years old
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be of sound mind (ie have capacity)
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be willing to take on the role
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not be declared bankrupt (if they're being appointed as a continuing attorney for financial matters)
You can appoint an individual (like a family member, friend, or professional) as either a continuing or welfare attorney. You can also appoint an organisation, such as a firm of solicitors or accountants, but only as a continuing (financial) attorney. A welfare attorney must always be an individual.
Appointing multiple attorneys
You can appoint more than one attorney. If you do, you must decide how they'll make decisions:
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jointly - this means all attorneys must agree on every decision. This can be complex if they disagree
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jointly and severally - this means any of your attorneys can make a decision on their own, or they can act together. This is usually more flexible
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a combination - you could state that some decisions must be made jointly, while others can be made 'jointly and severally'
You can also give different powers to different attorneys. For example, you could appoint an accountant to manage your financial affairs and a family member to make decisions about your welfare.
Appointing substitute attorneys
It's a good idea to name a substitute attorney in your POA document. A substitute can step in if your original attorney dies, resigns, or becomes incapable of acting for you.
How is a Scottish power of attorney made official?
Making a POA isn't just about signing a form. To make it legally valid and usable, you must follow specific steps involving certification and registration.
Can I make my own power of attorney?
While it's possible to draft your own POA document without a lawyer, it's strongly advised against. The wording of a POA must be very precise. Any mistakes, vagueness, or errors in the document could make it invalid or mean your attorney's powers are misinterpreted when they need to use them. Ask a lawyer if you require a POA for Scotland.
Whether you draft it yourself or use a professional, you must still have the document certified by a qualified person.
Certification
Your power of attorney document must be certified. This means a qualified person must interview you, as the granter, before you sign the POA to confirm that you understand what you're doing and that you're not being pressured.
This certificate must be signed by one of the following:
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a solicitor registered to practise law in Scotland
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a practising member of the Faculty of Advocates
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a UK-registered medical doctor who holds a licence to practise
Registration
A POA intended to be used if you lose capacity (ie all welfare POAs and most continuing POAs) has no legal effect until it's registered with the Office of the Public Guardian (Scotland) (OPG in Scotland). You should register your POA as soon as it's signed and certified. Don't wait until it's needed, as the registration process takes several weeks.
What does the Office of the Public Guardian (Scotland) do?
The OPG in Scotland is the public body responsible for all powers of attorney. Its main roles are to:
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check and register all Scottish POAs
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keep a public register of all POAs
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offer information and advice to attorneys managing financial affairs
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investigate any complaints or concerns raised about the actions of an attorney
Can I change or cancel my power of attorney?
You can change or cancel (ie revoke) your power of attorney at any time, as long as you still have the capacity to make that decision. If your POA has already been registered with the OPG (Scotland), you'll need to send them a formal document, known as a 'deed of revocation', to officially cancel it. For more detailed information, read How to cancel or update a power of attorney in Scotland.
Ask a lawyer if you need a power of attorney for Scotland or if you have any questions about your specific situation.
