What Is a Power of Attorney in Scotland and Why Do You Need One?
Many people assume that if they become unable to manage their own affairs, their spouse, partner or children will automatically be able to step in and make decisions for them.
Unfortunately, that is not the case.
A Power of Attorney is a legal document which allows you to appoint someone you trust to make decisions or take action on your behalf if you are unable to do so yourself. In Scotland, Powers of Attorney are governed by the Adults with Incapacity (Scotland) Act 2000.
A Power of Attorney can cover your financial affairs, your personal welfare, or both.
Why do I need a Power of Attorney?
A Power of Attorney allows you to plan ahead while you still have the capacity to make your own decisions.
An accident, illness, dementia or another condition could mean that you become unable to deal with your finances or make certain decisions about your welfare. Having a Power of Attorney already in place means that someone you have chosen can step in and assist you, within the powers you have given them.
Without a Power of Attorney, your family does not automatically acquire the legal authority to manage your affairs if you lose capacity. It may instead be necessary to apply to the Sheriff Court for a guardianship order, which can be more complicated, time-consuming and expensive.
A Power of Attorney is therefore not just something to consider when you are elderly. Anyone aged 16 or over with the necessary capacity can make one.
What types of Power of Attorney are available in Scotland?
There are three main arrangements.
Continuing Power of Attorney
A Continuing Power of Attorney deals with your property and financial affairs. Depending on the powers granted, your attorney could be able to:
- Operate bank accounts and deal with savings – helping to ensure that your financial affairs continue to be managed.
- Pay bills and expenses – including household bills and care costs.
- Deal with property – where the appropriate powers have been granted.
- Manage investments and other financial matters – allowing your attorney to deal with your financial affairs when you cannot.
A continuing attorney’s powers may be available as soon as the Power of Attorney is registered, or the document can provide that they only become exercisable if you lose capacity or another specified event occurs.
Welfare Power of Attorney
A Welfare Power of Attorney allows your attorney to make certain decisions about your personal welfare when you no longer have the capacity to make those decisions yourself. Depending on the powers granted, this can include decisions about:
- Healthcare and medical treatment – allowing your attorney to make relevant decisions on your behalf.
- Accommodation and care – including decisions about where you should live and the care you receive.
- Personal and welfare matters – allowing your attorney to deal with other matters specifically covered by the Power of Attorney.
A welfare attorney does not automatically take control of every aspect of your life. Their authority is limited to the powers granted in the document.
Continuing and Welfare Power of Attorney
A Continuing and Welfare Power of Attorney is the most common type of Power of Attorney. This includes both continuing and welfare powers. You can appoint the same person to deal with both financial and welfare matters or appoint different people. For example, you might choose one person to deal with your finances and another to make welfare decisions.
Who should I appoint as my attorney?
Choosing your attorney is an important decision.
You should appoint someone you trust and who you believe will act in your best interests. This might be your spouse, civil partner, adult child, another relative or a close friend.
You can appoint more than one attorney and can specify whether they should act together or separately. It is also possible to appoint substitute attorneys who can step in if your first-choice attorney is unable or unwilling to act. However, in the event your principal Attorney is unable to act for whatever reason, and your substitute attorney(s) step in, then your principal Attorney may lose their Powers permanently.
Think carefully about who you choose. Your attorney may have to deal with banks, financial institutions, care providers and other organisations on your behalf.
When should I make a Power of Attorney?
The important point is that you must have the necessary capacity when you make your Power of Attorney.
You should not wait until you become ill or your capacity starts to decline. There is no particular age at which you should make one. A younger person could lose capacity following an accident, while an older person may want to make arrangements in case they develop dementia or another condition affecting their ability to make decisions.
Making a Power of Attorney while you have capacity means that you choose who will act for you and what powers they will have.
Does my Power of Attorney have to be registered?
Yes.
A Power of Attorney must be registered with the Office of the Public Guardian in Scotland before your attorney can exercise the powers under it. This is an important point because signing the document does not, by itself, give your attorney authority to act.
The registration process also means that it is sensible to arrange registration rather than simply putting the signed document away for future use.
What responsibilities does an attorney have?
Being an attorney is a serious responsibility. An attorney must act within the powers granted to them and comply with the legal requirements governing their role.
For example, a financial attorney should:
- Act in the granter’s interests – the attorney is acting on behalf of the person who granted the Power of Attorney.
- Keep appropriate records – particularly in relation to financial transactions.
- Deal responsibly with the granter’s money – the attorney should not treat the granter’s assets as their own.
- Take account of the granter’s wishes and feelings – where relevant to the decisions being made.
The Office of the Public Guardian only has limited powers to investigate concerns about the management of an adult’s financial affairs by an attorney. Therefore you should choose your Attorneys wisely.
Is a Power of Attorney the same as a Will?
No.
They deal with completely different situations.
A Power of Attorney operates during your lifetime and allows someone to act for you if you are unable to manage your affairs. When you die this dies with you and is no longer valid on your death.
A Will deals with your estate after your death and sets out how you want your property and assets to be dealt with.
Having a Will does not give your family authority to manage your affairs while you are alive, and having a Power of Attorney does not determine who inherits your estate.
For many people, having both documents is an important part of planning for the future.
What happens if I lose capacity without a Power of Attorney?
If you lose capacity without having a suitable Power of Attorney in place, your family cannot simply take over your affairs. Depending on the circumstances, someone may need to apply to the court for a guardianship order. This is why making a Power of Attorney in advance can be so valuable. It allows you, rather than a court, to decide who you trust to assist you and what authority they should have.
Can I change my Power of Attorney?
Yes, provided you still have the necessary capacity.
You can generally revoke or change your arrangements if your circumstances change. For example, you may want to appoint a different attorney, add a substitute attorney or change the powers given to your attorney.
It is sensible to review your Power of Attorney from time to time, particularly following major life events such as marriage, divorce, bereavement or a significant change in your financial circumstances.
Conclusion
A Power of Attorney is an important part of planning for the future.
It allows you to decide, while you have capacity, who you trust to deal with your financial affairs and make welfare decisions if you are no longer able to do so yourself.
It can provide reassurance for you and your family and may avoid the need for a court application if you subsequently lose capacity.
If you do not have a Power of Attorney, or your existing document is several years old, it may be worth speaking to a Scottish solicitor to make sure your arrangements are appropriate for your circumstances.
If you need advice and you are looking for an experienced solicitor, then please contact our Private Client Team on 01324 622 888 or contact help@randa-fa.co.uk and we would be delighted to assist.
This article provides general information about Powers of Attorney in Scotland and is not a substitute for legal advice about your individual circumstances.
