3 Using a power of attorney in Scotland
Once a Continuing Power of Agreement or a Welfare Power of Agreement has been registered and the documentation received, it can be used at any time – you don’t have to wait for the donor to lose capacity. It might be that you (if you are the attorney) need to use it straightaway, if your relative is very ill, or you might need to use it every now and then for short periods while your relative is in hospital. On the other hand, the document might sit in a drawer for years before it is needed.
The attorney must show a certified copy of the Continuing Power of Agreement or a Welfare Power of Agreement (not just a photocopy) to any organisation that they want to deal with on their relative’s behalf. If you want certified copies at a later date, any solicitor should be able to do this for a small fee (around £5 per copy).
Dealing with banks when using a power of attorney
A Which? investigation (January 2015) has revealed that not all banks will give online or telephone access to power of attorney accounts. There also isn't consistency about the availability of an overdraft facility or a debit card. If any of these facilities are important to you, check each bank to establish what access they offer. If your donor's bank doesn't offer them, you might need to think about moving the account to one that does.
To find out more about the guidance framework that all banks and building societies should follow, see this page in the Retirement section of Which? Money.
If your relative lacks mental capacity
If your relative is no longer able to make their own decisions, it is too late to apply for a Continuing Power of Agreement or a Welfare Power of Agreement. In this situation, an application can be made for a 'Guardianship Order' to the Scottish Office of the Public Guardian. Anyone can apply for such an order, including a partner, family member, friend or a professional, such as a solicitor, or someone from the person’s local authority social work department.
If successful, the Sheriff can authorise the Guardian to do anything that appears necessary or expedient with respect to the property and affairs of the person lacking capacity.
This could be anything to do with their financial affairs including, for example:
- transfer and investment of money
- paying bills
- the sale or purchase of property
- making gifts or wills or the carrying on of a business.
Persons appointed under such orders have to report regularly and are monitored by the appropriate authority in relation to all actions and decisions taken in respect of your property and affairs. This supervision is considered appropriate given that an individual who has lost capacity is unable to appoint a person themselves and of their own choosing to act on their behalf.
Page last reviewed: April 2017
Next review due: April 2018