Power of Attorney in Scotland

What is a Power of Attorney?

Power of Attorney is a legal document that lets you make decisions relating to health and welfare, finances and property affairs on behalf of someone that no longer has the mental capacity to do so, or no longer wishes to.

The person, or people, who are granted these powers are known as ‘attorneys’ and the person giving them the authority is called a ‘granter’. Attorneys must always act in the granter’s best interest.

For example, if your parent’s health is deteriorating and they are expected to lose the capacity to make decisions in the future, they can grant you Power of Attorney to allow you to put them into a care home or make financial decisions when they are unable to.

The granter of a Power of Attorney must have the mental capacity to understand what granting Power of Attorney means when they do so. If they don’t, you will instead have to apply for a Guardianship Order.

A Power of Attorney is registered with the Office of the Public Guardian (OPG).

The information below applies to Scotland, where General Power of Attorney, Continuing Power of Attorney and Welfare Power of Attorney are available.

What does mental capacity mean?

A person that has their mental capacity is considered to be able to make their own decisions about their care and treatment as well as finances and property matters. This applies to people aged 16 and over.

The Adults with Incapacity (Scotland) Act 2000 states that a person who cannot do the following may lack mental capacity:

• Act on decisions
• Make decisions
• Communicate decisions
• Understand decisions
• Remember decisions (technically ‘retaining memory of decisions’).

This can include deciding to move into a care home, decisions regarding medical treatment, selling property or paying bills.

Although a person can lack the mental capacity to make financial decisions, they may still be able to decide what care they want to or should receive.

For example, an older person moving into a care home could be able to make decisions regarding their personal care and routines, but unable to manage selling their house in the process.

What are the three types of Power of Attorney in Scotland?

The three types of Power of Attorney in Scotland are known as General Power of Attorney, Continuing Power of Attorney (CPoA) and Welfare Power of Attorney (WPA).

They can give one or more person the authority to handle someone’s money, property and/or personal welfare.

General Power of Attorney (GPA)

A general Power of Attorney is normally set up if you want someone to act on your behalf for a limited period of time or on a specific issue.

You are not required to register a GPA with the Office of the Public Guardian, but it cannot be used if the granter loses their mental capacity.

A GPA can be used if you, for example, plan to go overseas for a long period of time or expect an extended hospital stay.

Continuing Power of Attorney (CPoA)

A Continuing Power of Attorney (CPoA) relates to financial and property affairs.

The CPoA can be set up so it comes in force immediately upon registration and continues when the granter loses their mental capacity. Alternatively, it can come into effect when the granter is unable to make their own decisions.

Welfare Power of Attorney (WPA)

The Welfare Power of Attorney (WPA) allows someone you have appointed to make health and welfare decisions for you.

These powers cannot be exercised until you have lost the capacity to make these decisions about your welfare.

Welfare decisions can include choices about where you should live or about care needs and medical treatment.

When is the right time to make a Power of Attorney?

There is no wrong time to make a Power of Attorney, particularly if you have been diagnosed with an illness that may cause you to lose your mental capacity, e.g. early onset dementia.

If you have lost your ability to make decisions regarding your health and welfare or financial affairs, it can be difficult for family members or close friends to have their application granted, and it can be a long process.

Planning ahead is always a good idea and putting a Power of Attorney in place will give both you and the attorneys peace of mind. You will know that people you trust will be making decisions in your best interests without delay if something were to happen.

If you don’t have a Power of Attorney in place, someone will have to successfully apply for a guardianship to be able to deal with your affairs. This person may not be the same person you would have chosen if you were able to decide yourself.

Who can make a Power of Attorney in Scotland?

In Scotland, anyone over the age of 16 who has mental capacity and can understand what they are doing can make a Power of Attorney (PoA). If you have currently been declared as bankrupt, you cannot make a PoA to deal with financial and/or property affairs. However, you can make a PoA to deal with future personal welfare decision making.

The attorney must also be over the age of 16 and could be a friend or family member, a solicitor or an accountant.

A solicitor or a medical practitioner must certify the Power of Attorney and are required to interview the granter before they sign the document. This procedure is in place to ensure the granter is aware of what they are doing.

How to make a Power of Attorney in Scotland

You can write the Power of Attorney yourself and register it with the OPG. However, it is advisable to involve a solicitor to make sure everything is covered.

There is financial help available for legal costs involved with a solicitor. This is called legal ‘advice and assistance’. The Scottish Legal Aid Board has information on eligibility and can help you find a ‘legal aid’ solicitor if you qualify.

The person making the Power of Attorney must be interviewed by a solicitor or doctor to ensure the granter fully understand the decision. The Power of Attorney is sent to the OPG along with a registration form, which the attorney is required to sign.

The Office of the Public Guardian (Scotland) gives general advice and guidance on this. You can telephone the OPG on 01324 678 300.

How much does it cost to get a Power of Attorney in Scotland?

Submitting a Power of Attorney application to the OPG comes with a fee of £87.

What happens if you have lost mental capacity?

If a person has already lost their mental capabilities and are unable to make their own decisions, they cannot apply for a Power of Attorney. Instead, someone else can apply for a Guardianship Order to the relevant Sheriff Court, which can take up to six months. Anyone can do this, whether they are a friend or a solicitor.

On successful application, the Sheriff authorises the guardian to deal with the person who lacks mental capacity’s affairs, for example selling property or paying bills.

You can read these advice articles on how to make a Power of Attorney in England and Wales and a Power of Attorney in Northern Ireland.