What powers of attorney exist?
There are three types of power of attorney in Scotland:
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Continuing Power of Attorney (CPA) - are powers of attorney relating to your financial/property affairs and may be given with the intention of taking effect immediately and continuing on you becoming incapable. Alternatively, you can decide you only want it to begin if you become incapable
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Welfare Power of Attorney (WPA) - this allows someone you have appointed to make welfare decisions for you, and these powers can't be exercised until such time as you have lost the capacity to make these decisions
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Combined Continuing and Welfare Power of Attorney - this is a combination of a CPA and WPA
Who can make a power of attorney?
Anyone over 16 can make a power of attorney, but you need to have the capacity and be able to understand what you are doing by granting this.
Note that a declared bankrupt cannot make a power of attorney to deal with their financial and/or property affairs. However, a declared bankrupt can make a power of attorney giving powers to deal with your future personal welfare decision making.
Appointing your attorneys
First of all, you need to decide who you are going to appoint as your attorney or attorneys. It goes without saying that you should trust these people implicitly.
They are likely to be making some very important decisions on your behalf. Your attorneys:
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must be over the age of 16
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must be of sound mind
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be willing to take on the role of attorney
Someone who is currently declared bankrupt cannot act as a continuing attorney.
Deciding how your attorneys will make decisions
If you decide to have more than one attorney, you will need to decide whether your attorneys are given authority to act jointly and severally, or jointly.
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acting jointly: this means that all your attorneys must agree to every decision made on your behalf
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acting jointly and severally: this means that any one of the attorneys can make decisions independently of the others
You can also consider appointing one or more substitute attorneys to take the place of a sole or joint attorney. A substitute usually takes over the appointment when either a sole or joint attorney dies or resigns. Where you wish to appoint such a substitute attorney, you must name them in your power of attorney document.
Power of attorney formalities
The power of attorney document must be certified by a solicitor registered to practise law in Scotland, a practising member of the Faculty of Advocates or a UK medical practitioner. They must interview the person granting the power of attorney before they sign the document. This is to make sure they're aware of what they're doing and are not under undue influence.
Powers of attorney – those which are to continue or begin in the event of incapacity – can't take effect until they've been registered with the Office of the Public Guardian (Scotland).
The Office of the Public Guardian is responsible for the registration and maintenance of power of attorney documents within Scotland. The Office will ensure that documents are properly registered, offer information and advice to Attorneys dealing with financial affairs and can investigate any complaints raised about the actions taken by an Attorney.
Ask a lawyer if you need a power of attorney in Scotland.
Revoking or amending a power of attorney
The granter of the power of attorney may amend or revoke a power of attorney that has been registered with the Public Guardian, provided that the granter is capable of making and understanding this decision.
For more information on this process, read How to revoke or amend a power of attorney in Scotland.
