Power of Attorney in Scotland
A Power of Attorney is a legal document. It allows you to choose other people to make decisions on your behalf.
The people chosen to make decisions on your behalf are known as attorneys. You can have more than one attorney. There are two types of Power of Attorney:
- Continuing Power of Attorney - this allows your attorney(s) to make decisions about things such as paying bills, dealing with the bank and selling your house. You may choose for your attorney(s) to have this power straight away or at a later date. For example, they may have this power when you are no longer able to make decisions for yourself (this is known as mental capacity).
- Welfare Power of Attorney - this allows your attorney(s) to make decisions about things such as your treatment, care, medication and where you live. This power will only come into effect when you are not able to make these decisions for yourself. This means that even if you make a Welfare Power of Attorney, you remain in control of making decisions about your welfare for as long as you are able to make decisions for yourself.
Many people choose to make both Powers of Attorney at the same time. But you can just make one if you prefer.
Why a Welfare Power of Attorney may be helpfulBack to top
A Welfare Power of Attorney can give you peace of mind because you know that someone you trust will make decisions on your behalf if you become seriously unwell. Your attorney will be able to consent to treatments on your behalf but can’t request treatments that won’t benefit you.
For example, a person may decide to give Welfare Power of Attorney to their adult son and/or daughter. By discussing their thoughts about any future healthcare decisions with their children, they can be sure that their care instructions will be followed if they’re unable to make their own decisions.
If you do appoint someone to be your attorney, choose someone you trust, who is like-minded and has a good idea of your preferences. They are more likely to make the decisions you would want.
Making a Power of AttorneyBack to top
You can only create a Power of Attorney if you are aged 16 or over and have capacity (are able to understand what it is and what it means for you).
You can find example forms for each of the Powers of Attorney on the Office of the Public Guardian Scotland’s website.
A Power of Attorney must include a certificate signed by a solicitor or a medical doctor to say that you are capable of making the Power of Attorney. It will also need to be registered with the Office of the Public Guardian before it can be used. There is a fee to register a Power of Attorney. You can phone the Office of the Public Guardian Scotland to find out the exact fees involved. If you’re on certain benefits, you may not have to pay the fee or you may only have to pay part of the fee. The Office of the Public Guardian Scotland will be able to advise you on this. You can find details of the fees on their website.
You may find it helpful to talk to a solicitor before making a Power of Attorney. They can guide you through the process of making one. You may be able to have legal assistance to help with legal fees.
This means you may not have to pay, or only pay part of, the solictor’s fees for helping you make a Power of Attorney. To find out more about legal aid, speak to your solicitor.
Welfare Power of Attorney and Advance DirectivesBack to top
If you make an Advance Directive, your welfare attorney will need to follow your decisions in the Directive. This is only if your Advance Directive is up to date and is known to still reflect your views.
We have more information about Advance Directives in Scotland
Other things to think aboutBack to top
The power of your attorney stops as soon as you die. So if you have a Continuing Power of Attorney, your attorney is not able to manage your property or finances after you have died. This means that your property and finances are protected and will be looked after according to the instructions in your will. Bank accounts are also frozen at the time of person’s death and can’t be used. So if you have a partner, you may want to consider putting bank accounts into both your names.