Power of Attorney in Scotland
Power of Attorney allows you to appoint someone to make important decisions or act on your behalf, should you be unable to do so in the future.
In Scotland, there are two types of Power of Attorney:
1. Continuing Power of Attorney (CPA)
This form of Power of Attorney allows you 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.
2. 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.
You can also set up a Combined Power of Attorney
This combines the powers of a CPA and WPA.
When should I set up a Power of Attorney?
If a Power of Attorney isn’t set up in advance, it can lead to complications when someone has difficulty looking after their own affairs in the future, or if they need extra care or support arrangements to be organised. For this reason it’s best to set up a Power of Attorney sooner rather than later.
You can use a solicitor or will writer to help you set up a Power of Attorney, but always ask for written confirmation of their fees beforehand. Which? also has a service to help you set up a Power of Attorney.
- Find out how Which? can help you set up a Power of Attorney.
Setting up a Power of Attorney in Scotland
When setting up a Power of Attorney, 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.
Once the CPA or WPA is drawn up and signed, it will 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.
Return the completed Power of Attorney and registration form to the Scottish Office of the Public Guardian together with the fee of £81. If you have a low income or are receiving certain state benefits, you may be eligible for a fee exemption – find out more here.
Read more guidance on how to complete the Power of Attorney process.
Tips on filling in the forms in Scotland
The Scottish Office of the Public Guardian explains what you need to do to fill in a Power of Attorney document. The Scottish OPG is purely a registration service. They aim to process applications within 30 working days of receiving the document.
In Scotland, only a prescribed person can confirm that you are capable and able to grant the Power of Attorney. As part of the process, a solicitor registered to practise law in Scotland or a registered UK medical doctor must carry out an interview with you and confirm that you understand the nature and impact of making a Power of Attorney. The prescribed person will then complete and sign a ‘certificate of capacity’ and this will form part of the Power of Attorney document.
Using a Power of Attorney in Scotland
As soon as a Power of Attorney 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. The Scottish Office of the Public Guardian can also provide a duplicate copy for a fee.
What 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 Attorney or a Welfare Power of Attorney. 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.
What is a Power of Attorney and why should you set one up? We also explain about Lasting Power of Attorney.
How to help yourself or a trusted family member to deal with financial affairs, including using third-party mandates.
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