Power of attorney

A power of attorney (in Scotland), and a lasting power of attorney (in England and Wales), are written legal documents. They let you choose (appoint) someone you trust to make decisions for you, if you become unable to make decisions yourself. The person you appoint is called your attorney.

In England and Wales, there are 2 types of LPA. You can make 1 of them, or both:

How an LPA for health and welfare can help

Having a health and welfare LPA can reassure you that someone you trust will make decisions about your health and welfare for you, if you cannot.

This should be someone who will:

• understand and respect your wishes
• act in your best interest.

Talk to the person you want to choose about what being an attorney involves, and your wishes for any future care. You may want to make notes about what you discuss, and share them with your attorney. Make sure they understand what is important to you. The law says that your attorney must make decisions that will benefit you and are in line with your wishes.

Making an LPA can also help to avoid conflict if there is likely to be any disagreement among family members. It means your healthcare team has a legal duty to consult your attorney if you are no longer able to make a decision for yourself.

Having an attorney means family or friends will not have to go to court to apply for similar powers to power of attorney at a later stage.

In Scotland, there are 3 types of power of attorney:

• Continuing power of attorney is for financial and legal decisions, including paying bills and selling your home. They cannot manage your property or finances after you have died.
• Welfare power of attorney is for health and care decisions, including treatment, care, medication and where you live or are cared for.
• Combined power of attorney combines the first 2. It gives your attorney financial and welfare powers.

Many people choose to make a combined power of attorney. If you appoint more than 1 attorney, you must decide if they will make decisions separately or together.

The power of attorney document includes a certificate that must be signed by a solicitor or medical doctor. This is to confirm that you can make and understand your own decisions. This is called having mental capacity.

How a welfare power of attorney can help

Having a welfare power of attorney can reassure you that someone you trust will make decisions about your health and welfare for you, if you cannot. This should be someone who will:

• understand and respect your wishes
• act in your best interest.

Talk to the person you want to choose about what being an attorney involves, and your wishes for any future care. You may want to make notes about what you discuss, and share them with your attorney. Make sure they understand what is important to you. The law says your attorney must make decisions that will benefit you and are in line with your wishes.

Having an attorney also helps to avoid possible disagreement among family members. It means your healthcare team has a legal duty to consult your attorney if you are no longer able to make a decision for yourself.

If you make an advance directive (living will) your welfare attorney must follow your decisions in the directive. But your advance directive has to be up to date, relevant to your situation and known to still reflect your views.

Without a power of attorney, nobody has an automatic right to make decisions on your behalf if you can no longer do so. To act on your behalf, someone would have to apply for a guardianship order through the local Sheriff Court.

You need to be aged over 16 to set up a power of attorney. You must also be able to make your own decisions. This is called having mental capacity.

You can make your own power of attorney document. Some stationery shops sell a specific form. It is a legal document and must be prepared properly, so you might want help from a solicitor. They make sure your wishes are clear and are carried out exactly as you want.

If you do not have a solicitor, you can find one by contacting the Law Society of Scotland.

A power of attorney can only be used when it has been registered with the Office of the Public Guardian. This can take several weeks. 

There is usually a fee to register a power of attorney. If you are on certain benefits, you may not have to pay the fee, or it may be reduced.

To find out more visit publicguardian-scotland.gov.uk

If you have made a power of attorney, tell your GP. They can add this to your Key Information Summary.