A Power of Attorney in Scotland
Power of Attorney (PoA) allows you to choose someone else to deal with third parties, such as banks or the local council, on your behalf, should you be unable to do so in the future.
In Scotland, there are three types of Power of Attorney:
- Continuing Power of Attorney (CPA)
- Welfare Power of Attorney (WPA)
- combined Power of Attorney, which is a combination of a CPA and WPA.
Continuing Power of Attorney (CPA)
This form of Power of Attorney allows you (the ‘granter’) to appoint someone to look after your property and financial affairs immediately, continuing into incapacity or if you become mentally incapable. It can also contain welfare powers, for example, to determine where you should live should you need to move due to changing levels of care need. Welfare powers can only come into effect on incapacity.
A CPA must be registered with the Scottish Office of the Public Guardian to be effective.
Welfare Power of Attorney (WPA)
This Power of Attorney enables your attorney(s) to make decisions about your health and welfare after you become incapable. These powers can include deciding where you will live and personal issues, such as medical treatment and personal care. Your attorney(s) can’t intervene while you have capacity to make the decision for yourself.
For more information, see the Scottish Office of the Public Guardian’s website.
Setting up a Power of Attorney in Scotland
Setting up a CPA or a WPA is straightforward. You can do it through:
Which? Wills: we have a Power of Attorney Selector to help you get the right Power of Attorney document; from there you can then purchase the appropriate PoA from Which? Wills
- a solicitor or will writer.
If you choose to use a solicitor or will writer, always ask for written confirmation of their fees beforehand.
When setting things up, you can stipulate which ‘powers’ you want to give; for example, you might only want your attorney to deal with your bills, but not to have the power to sell your property, or you may only want the attorney to deal with your affairs once you start to lose capacity.
You can give ‘power’ to one or more people and you are known as the 'granter'. It’s important that you choose people you can trust to act in your best interests.
If you’re appointing more than one person, you must decide if they will make decisions:
- separately or together: sometimes called ‘jointly and severally’, which means attorneys can make decisions on their own or with other attorneys
- together: sometimes called ‘jointly’, which means all the attorneys have to agree on the decision.
You can also choose to let them make some decisions ‘jointly’, and others ‘jointly and severally’.
Once the CPA or WPA is drawn up and signed, it will still need to be registered at the Scottish Office of the Public Guardian. It could take up to eight weeks for this to happen, so it’s best to try to get the form in before it’s needed.
Using a Power of Attorney in Scotland
As soon as a CPA or a WPA 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. You may have given your attorneys guidance or a letter to state when they can act.
If you are caring for someone, to use the a CPA or a WPA, you must show a certified copy of it (not just a photocopy) to any organisation that you want to deal with on your loved one’s behalf, including their 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 Scottish Office of the Public Guardian can also provide a duplicate copy for a fee.
The document might sit in a drawer for years before it’s needed, but it’s reassuring to know it’s there in case of emergency.
If your loved one lacks mental capacity
If your loved one is no longer able to make their own decisions, it’s 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.
If successful, the Sheriff can authorise the appointed 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.
Your loved one might need help with their financial affairs if they have a disability or an illness such as dementia.
How to help yourself or a trusted family member to deal with financial affairs, including using third-party mandates.
What is a Power of Attorney and why should you set one up? We also explain about Lasting Power of Attorney.