3 Using a power of attorney in Scotland
As soon as a Continuing Power of Agreement or a Welfare Power of Agreement has been registered and the documentation received, the attorneys will need to refer to the document to find out when they are to act. It might be at a later date or once an event has taken place. A granter may have given the attorney guidance or a letter to state when they can act.
To use the a Continuing Power of Agreement or a Welfare Power of Agreement, you must show a certified copy of it (not just a photocopy) to any organisation that you want to deal with on your relative’s behalf, including his or her bank.
If you need additional certified copies at a later date, any solicitor should be able to do this for a small fee, which they will be able to provide on request. The Office of the Public Guardian can also provide a duplicate copy for a fee.
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 appropriate Sheriff Court. 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.
Power of Attorney from Which?
Preparing for the future can be made easier with a Power of Attorney and you can set one up with Which? Wills.
Use our quick Power of Attorney Questionnaire to see which one is best for you.
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 updated: April 2018