A Power of Attorney can be a valuable tool to offer peace of mind and safeguard your interests in times of need. In this article, we briefly explain what a Power of Attorney is, the different types and how they can benefit you and your loved ones

What is a Power of Attorney?

A Power of Attorney is a legal document that allows you to appoint someone to make certain decisions on your behalf if you are unable to do so in the future.

In Scotland, there are 3 types of Power of Attorney:

  • a Continuing Power of Attorney, for decisions in relation to your finances and property
  • a Welfare Power of Attorney, for decisions in relation to your health and welfare, or
  • a Combined Power of Attorney, for decisions relating to both financial and welfare matters incorporated into one document.

Only powers which are included within the Power of Attorney document can be used by your Attorney. It is therefore very important to discuss your circumstances in detail with a solicitor to make sure that the appropriate and relevant powers are included.

Who can act as your Attorney?

Your Attorney should be someone that you trust such as a spouse, close friend or relative. A professional person such as a solicitor or accountant may also be willing to act.

There is no limit to the number of Attorneys you can appoint but they must be over the age of 16 and, if they are being granted financial powers, not declared bankrupt. We would recommend that you appoint at least two Attorneys, or one Attorney and a substitute, in the event your main Attorney is unable to act.

Before agreeing to act, your chosen Attorney should familiarise themselves with the role and responsibilities this would entail. There are strict guidelines and a Code of Conduct which can be found on the Office of the Public Guardian (Scotland) website.

When is the Power of Attorney activated?

Before the Power of Attorney is activated, a doctor or solicitor must sign a certificate to confirm that you understand the effect of the document and what powers you are granting to your Attorneys. The Power of Attorney must then be registered with the Office of the Public Guardian (Scotland).

If you are granting continuing (financial) powers, you need to include a trigger for when your Attorney can begin to act on your behalf. This may be straight away when the Power of Attorney is registered, or a later date, for example, if you lose capacity (that is, you become unable to make day to day decisions on your own behalf).

Welfare powers can only be used by your Attorney in the event you no longer have mental capacity. Incapacity is usually determined in writing by at least one medical practitioner.

What happens if you do not have a Power of Attorney but can no longer manage your own affairs?

Without a Power of Attorney, your family or friends will not be able to act on your behalf if you lose capacity, as they will have no legal authority to do so. In this situation, your family or others (such as the local authority) would need to apply to Court to become your Guardian. This is a very long and intrusive process which can be quite expensive.

Do I need to make a Scottish Power of Attorney if I already have an English Lasting Power of Attorney?

The issue about whether an English Lasting Power of Attorney will be accepted in Scotland is unclear and is usually dependent upon individual organisations agreeing to accept it. The Office of the Public Guardian (Scotland) has produced a certificate ‘recognition of foreign Powers of Attorney’ which can be downloaded from their website and kept with your English Lasting Power of Attorney.

In any event we would recommend that you prepare a separate Scottish Power of Attorney.

I would like some further advice about Powers of Attorney – can you help?

Whether it’s managing your finances, healthcare decisions, or both, putting in place a Power of Attorney can help to ensure that your wishes are respected and your well-being is in capable hands, should the need arise.

Our experienced private client team can give advice about Powers of Attorney and prepare the necessary documents for you. Please get in touch and we would be delighted to help.