What is a power of attorney?

A power of attorney is a legal document. It lets you choose (appoint) someone to make decisions for you if you become unable to make decisions yourself. The person you appoint is called your attorney. The power you give them can be long or short term.

Setting up a power of attorney usually gives the person you have chosen the power to make the following decisions for you:

  • legal decisions
  • financial decisions
  • healthcare decisions.

In Scotland, there are three main types of power of attorney:

  • Continuing power of attorney – this is for financial decisions, including things like paying bills and selling your home.
  • Welfare power of attorney – this is for health and care decisions, including things like treatment, care, medication and where you live.
  • Combined power of attorney – this is a combination of the first two types. It gives your attorney financial and welfare powers.

Most people choose to make a combined power of attorney. But you can just make one of the others if you prefer.

All of these types of power of attorney can only be used when they have been registered with the Office of the Public Guardian.

You can find out more about making a power of attorney at publicguardian-scotland.gov.uk

How a welfare power of attorney can help

A welfare power of attorney can give you reassurance that someone you trust will make decisions for you if you become seriously ill. For example, you may decide to give welfare power of attorney to your adult children. You can then discuss your thoughts about any future care decisions with them. So you can be sure that your instructions for your care will be followed if you are unable to make your own decisions. Setting up a welfare power of attorney also means your loved ones do not have to apply for power of attorney through the courts at a later stage. This can be a long and expensive process.

If you do appoint someone to be your attorney, choose someone who:

  • shares similar opinions and ideas to you
  • has a good idea of your wishes.

They are more likely to make the decisions you would want. The law says that your attorney must make decisions that will benefit you, and are in line with your wishes.

Making a power of attorney

You must 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. This means you can:

  • understand the decision you are making
  • understand what may happen as a result of the decision
  • remember and process any information you need to make the decision
  • make the decision
  • communicate the decision to your doctor or others caring for you – this does not have to be by talking.

You can find out more about mental capacity at gov.uk

You can make a power of attorney online at publicguardian-scotland.gov.uk Or you can get a form through your solicitor or your local stationery shop.

Although you can make your own power of attorney, it is a legal document and must be prepared properly. So you may want to get help from a solicitor. They will 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. You may be able to have legal assistance to help with legal fees. This means you may not have to pay the solicitor’s fees for helping you make a power of attorney, or you may only have to pay part of them.

To find out more about legal aid, speak to your solicitor or contact the Scottish Legal Aid Board on 0131 240 2082 (Monday to Friday from 8.30am to 5pm).

A power of attorney must include a certificate signed by a solicitor or medical doctor to say that you are capable of making the power of attorney. The power of attorney must be registered with the Office of the Public Guardian before it can be used. This can take up to 30 working days.

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 you may only have to pay part of the fee. To find out more visit publicguardian-scotland.gov.uk

It is a good idea to tell your GP if you have made a power of attorney. This is so they can add this to your Key Information Summary (a document that includes important information about your wishes).

Welfare power of attorney and advance directives

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, relevant to your situation and known to still reflect your views.

Other things to think about

If you have a financial power of attorney, your attorney cannot manage your property or finances after you have died. This means that your property and finances will be looked after according to the instructions in your will.