Setting up a power of attorney in Scotland

We should all be thinking about who we would want to make financial decisions on our behalf if we could no longer make them ourselves. Here’s how.

What is a power of attorney?

A power of attorney is a legal document that lets you give one or more person the power to make decisions and manage:

  • your money and property, and/or
  • your health and welfare.

As long as you’re aged 18 or over, you can set one up at any time, providing you’re able to weigh up information and make decisions yourself.

A power of attorney can help you with:

  • temporary situations. For example, you’re in hospital or abroad and need help with everyday tasks such as paying bills.
  • longer-term situations. For example, you want to plan for the unexpected or have been diagnosed with dementia and may lose the mental capacity to make your own decisions in future.

Power of attorney – terms explained

  • Continuing power of attorney – an ongoing arrangement with no expiry date. It will allow the person/people you pick to make decisions about property and finance on your behalf. It can be used either while you’re still capable of making those decisions yourself, or after you’ve lost capacity.
  • Welfare power of attorney – an ongoing arrangement with no expiry date. It will allow the person/people you pick to make decisions about health and welfare on your behalf. It can only be used one you’ve become incapable of making those decisions yourself.
  • Combined power of attorney – this combines both a continuing and welfare power of attorney. It covers decisions about property and finance, as well as health and welfare.
  • General (or ordinary) power of attorney – this is for when you only need help temporarily. It’s only valid as long as you have mental capacity.
  • When you give authorisation to someone else to act on your behalf, you are the granter.
  • The attorney is the person that you choose to act on your behalf. Anyone with mental capacity who is aged 16 years or older can be an attorney in Scotland. This includes a wife, husband, civil partner, partner, friend, family member or a professional such as a solicitor.
  • Mental capacity means the ability to understand the decisions you need to make, why you need to make them, and the likely outcome of your decisions.

If you’re not sure if someone has mental capacity to make their own decisions, there are more details on the Office of the Public Guardian (Scotland) website.

How does a power of attorney work?

You (or your solicitor) draw up the documents giving all the details of who you want to act on your behalf. You then register them with the Office of the Public Guardian in Scotland.

You keep the documents safe and carry on making decisions in the usual way until they’re needed.

If and when your attorney needs to act on your behalf, they will have to give certified copies of the power of attorney to your bank and all the organisations they are dealing with. This is to prove they’re legally authorised to act for you.

What can be done on my behalf with a power of attorney?

A continuing power of attorney gives the person you choose the power to manage your property or financial affairs. This might be, for example, managing your bills and bank account, or selling your house.

A welfare power of attorney gives the person you choose the power to take decisions about your personal and health care. This might be, for example, deciding where you will live, or your medical treatment and personal care.

When thinking about which powers (continuing, welfare or a combination) to give, think about the short term and longer term. This will make sure your attorneys have enough powers to make decisions on your behalf.

When do I set up a power of attorney?

The sooner the better.

It’s a lot harder and more expensive for someone to help you with your money, property and welfare if you’ve already lost mental capacity.

It’s really important to get it all set up in advance. Life is uncertain, and you never know when something like an accident or a stroke might happen.

Also, it takes several weeks to set up a power of attorney. So you don’t want to leave it to the last minute.

If you want to talk to someone about whether you should set up a power of attorney now, contact the Office of the Public Guardian (Scotland).

You can email them using OPG@scotscourts.gov.uk or call them on 01324 678300.

You can also call us free on 0800 138 7777.

Did you know?

If you’re married or in a civil partnership and lose mental capacity to make a specific decision – your partner won’t automatically be allowed to make that decision on your behalf without a power of attorney.

Choosing someone to act on your behalf

Being an attorney is a responsible role and it’s important to think carefully about who to choose.

  • Choose someone you trust completely –you need to really trust whoever you choose as they will be making serious decisions for you. Most people choose close family members or friends. You could also choose a company, such as a bank, but this can be expensive. And you can’t choose a company for a welfare power of attorney – it has to be an individual.
  • Make sure they’re willing to act for you – you need to make discuss with them what you’ll want them to do. They need to know what’s involved, what your wishes are and where all your paperwork is.
  • Consider age –if you’re older, be wary of choosing someone who is a similar age as you (or older). They might not end up being the best person to act for you, if and when you need their help, because of their own health issues.

Choosing more than one person to act on your behalf

Pros

  • You don’t have to leave people out of the process.
  • It can spread the work.

Cons

  • They may disagree on what actions to take.
  • Depending on their location, it might be tricky for them to meet to sign documents.

If you do choose to have more than one person representing your interests, you can choose for them to act:

  • Jointly – they must always make decisions together. It means that if one of them dies, the power of attorney would become invalid (unless you’ve appointed a substitute).
  • Jointly and severally – they make some decisions together and some individually. This means if one of them dies, the power of attorney would still be valid.

You can decide to have separate attorneys to manage your finances and property, and your health and welfare.

Choosing substitute attorneys

You can choose a back-up attorney. This should be someone you really trust. They would take over making decisions if one of the ‘original’ attorneys were to resign or die.

Choosing a substitute attorney protects against the power of attorney being cancelled if the original ones can no longer act.

Substitute attorneys have the same level of authority as the attorneys they replace. They usually step in as soon as one of your original attorneys stops acting for you.

How do I set up a power of attorney?

The Office of the Public Guardian in Scotland doesn’t provide standard documentation for setting up a power of attorney.

You can write it yourself, but most people use a solicitor.

If you decide to write it yourself, make sure you follow all the guidance on the Office of the Public Guardian (Scotland) website.

If you decide to use a solicitor, you can search for one who specialises in this area on the Law Society of Scotland website.

As part of the power of attorney process, you’ll also need to have had an interview with one of the following:

  • a solicitor registered to practise law in Scotland
  • a practising member of the Faculty of Advocates
  • a registered UK medical doctor who holds a licence to practise.

This is to confirm that you understand what you’re doing. They will then complete a certificate of capacity, which forms part of your power of attorney document.

Once it’s been drawn up, you (or your solicitor) need to register your power of attorney document with the Office of the Public Guardian in Scotland.

How much does it cost to set up a power of attorney?

You will need to pay £81 for registering each power of attorney.

You’ll also need to take into account any solicitor’s fees for creating the document. Your solicitor may also ask you to visit your GP or an independent mental capacity assessor to decide about your mental capacity. There’s likely to be a charge for this service.

Fee exemptions

Setting up power of attorney is free (known as an exemption) if you’re on certain mean-tested benefits such as Income Support.

All the rules for who qualifies for an exemption are listed on the Office of the Public Guardian (Scotland) website.

How am I protected from things going wrong?

Your attorney must:

  • support you to make your own decisions
  • make all decisions in your best interests
  • consider your wishes and feelings.

If they don’t do these things, they could be referred to the Office of the Public Guardian in Scotland.

Deciding what is meant by ‘incapacity’

If you want your power of attorney to begin in the event of your incapacity you can include an ‘incapacity statement’. This would state exactly how you want your incapacity to be determined and who should do this. It makes it clear what your wishes are so they can be followed.

Cancelling a power of attorney

As long as you still have mental capacity, you can cancel a power of attorney at any time.

Get instructions for cancelling a power of attorney on the Office of the Public Guardian (Scotland) website.

Too late to set up a power of attorney?

If someone no longer has the capacity to make their own decisions, you will need to apply to the Sheriff Court for either:

  • an intervention order – to enable someone else to make a one-off decision for them, or
  • a guardianship order – to enable someone else to make decisions for them for a set amount of time.

Find out more on the Office of the Public Guardian (Scotland) websiteopens in new window.

Did you find this guide helpful?