Power of Attorney

What is a Power of Attorney?

Power of Attorney is the legal authority that allows someone to make decisions on your behalf if you become unable to do so, and to support you to manage your finances. Scottish law says that everyone over 16 years old has the legal capacity to make decisions, unless a legal decision is made that this is not the case.

Why should I have a Power of Attorney?

There is a possibility, depending on future circumstances that If you don’t set up a Power of Attorney and you lose the ability to make decisions for yourself, the person who makes decisions on your behalf may not be the person you would have chosen.

Your next-of-kin, family or other people close to you do not have the legal right to make decisions for you if you lose the ability to do so yourself unless they have Power of Attorney in place.

Types of Power of Attorney

The different types of Power of Attorney are.

Continuing Power of Attorney enables someone, or more than one person, to look after your property and financial affairs. Continuing powers could include managing your bank accounts, buying or selling property and claiming benefits on your behalf. You can choose whether a Continuing Power of Attorney takes effect straight away, so someone can help you to manage your money now, or only comes into effect if you lose the capacity to make your own decisions later on.
Welfare Power of Attorney enables someone, or more than one person, to make decisions about your health and welfare only if you are unable to do this yourself. Welfare powers could include making decisions about where you will live, how you will dress, what you will eat and what medical treatment and care you will receive.
Combined Continuing and Welfare Power of Attorney enables someone, or more than one person, to look after both your financial affairs and health and welfare decisions.

What is mental capacity?

Mental capacity is the ability to make decisions for yourself and act on them and remember them. Some people may have had limited capacity all their lives. Others may have a reduced capacity caused by a progressive illness such as dementia, or may suddenly lose capacity after a stroke or an accident.

In Scotland, if somebody is incapable of managing their finances or making decisions about their welfare, the Adults with Incapacity (Scotland) Act 2000 provides protection for them. The Act states that a person may not have mental capacity if they are unable to: make or act on decisions, communicate decisions, understand decisions, or remember decisions.

What happens if there is no Power of Attorney in place?

If you lose capacity to make decisions for yourself and have not appointed an attorney, someone usually has to go to court to apply for a Guardianship Order to be able to act on your behalf. The process of applying to the court can take a long time, is expensive and can be a stressful and emotional experience. The person appointed by the court may not be the person you would have chosen, and they may not know what your wishes would have been. Writing the Power of Attorney document

Who can be appointed as your attorney?

Your attorney could be a partner, relative or friend. They must be over 16 years old, willing to take on the role and cannot be bankrupt. You need to be confident that they will act in your best interests and that they have the skills to carry out the tasks involved. You should never feel pressured into choosing someone you don’t want.

You can choose one, two or several people to be your attorney. You could grant continuing (financial) powers to one person, and welfare powers to another. You could also have more than one attorney for each type of power. If you do this, consider their relationship and whether they would work well together.

How do I set up a Power of Attorney?

You can use a solicitor to help set up your Power of Attorney or you can write it yourself. The Power of Attorney must be registered with the Office of the Public Guardian before it can be used. You should think about whether you want your attorney to be able to act for you immediately (continuing powers only) or only if you lose capacity.

Most people use a solicitor to draw up a Power of Attorney. The solicitor has to state that you have the mental capacity to understand what you are doing by granting Power of Attorney. They may ask you to have a GP assessment in order to confirm this. Once the solicitor is satisfied that you are able to grant Power of Attorney, they will send the document to the Office of the Public Guardian to be registered. There is a fee for registering the document.

Being an Attorney

As an Attorney, you have a duty to carry out the person’s instructions, and make decisions in accordance with their wishes. If you feel that there are instructions you could not follow, due to religious beliefs for example, you should not accept the position of attorney. As an attorney, it is important to feel that you know the granter’s wishes well, so it can be useful to talk to them about this regularly. Ask them to let you know if their wishes and priorities change. Being an attorney can be time consuming and stressful. If you have continuing (financial) powers, you may have to deal with unfamiliar issues, such as shares, pensions, tax and property. If you have welfare powers, you may need to make decisions about medical treatment or care homes. It is a good idea to find out in advance where you can get advice about these issues if you need it.

There are certain responsibilities you have, and standards you must meet, when you start acting as an attorney:

only making decisions you have been granted the power to make
not taking advantage of the position of trust you are in, or putting yourself in a position where your own interests conflict with your attorney responsibilities
carrying out the granter’s instructions
using a reasonable standard of care and skill
respecting the granter’s confidentiality
keeping records of decisions made, including evidence of how money has been spent, and who else was involved in the decision-making process
following the principles of The Adults with Incapacity (Scotland) Act 2000 and complying with any directions from the Sheriff Court

If I agree to be an attorney, what happens?

When the Power of Attorney has been registered with the Office of the Public Guardian, they will send you a registered copy of the document. If you need to act as attorney, you will have to show or send the Power of Attorney document to relevant organisations such as banks, medical professionals, solicitors and care professionals, together with proof of your identity.

A Continuing (financial) Power of Attorney can either be used straight away, or only if the granter loses capacity. The person granting Power of Attorney chooses which option they want. A Welfare Power of Attorney can only be used if the granter loses capacity. A Power of Attorney that can only be used once mental capacity is lost must include a statement saying that the granter has considered how their incapacity is to be determined - how this should be assessed, and who should do this, for example by a qualified medical practitioner.