Power of Attorney

A Power of Attorney (PoA) is a legal document which gives someone you trust written permission 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 different types of Power of Attorney in Scotland:

  • Financial PoA – This gives powers to deal with your money and property.
  • Welfare PoA – This gives powers to make decisions about your personal welfare or health care and treatment.
  • Combined PoA – This gives finance and welfare powers.

You can only create a PoA if you are aged 16 or over, and can understand what it is and what it means for you. This is called having mental capacity.

You can create your own PoA, but you may want to get help from a solicitor. They can make sure it meets legal requirements. A PoA needs to include a signed certificate saying you are capable of making the PoA.

Before it can be used, a PoA must be registered with the Office of the Public Guardian.


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What is a Power of Attorney (PoA)?

A Power of Attorney is a legal document. It allows a person to choose other people to make decisions on their behalf.

The people chosen to make decisions on your behalf are known as attorneys. You can have more than one attorney.

There are different types of Power of Attorney in Scotland:

  • Financial PoA – This allows your attorney (or attorneys) to make decisions about things such as paying bills, dealing with the bank and selling your house. You may choose for your attorney (or attorneys) 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 (you lack mental capacity).
  • Welfare PoA – This allows your attorney (or attorneys) 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.
  • Combined PoA – This gives financial and welfare powers.

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 PoA may be helpful

A Welfare PoA can give you peace of mind because you know that someone you trust will act on your behalf if you become seriously ill.

For example, a person may decide to give Welfare PoA to their adult children. They can then discuss their thoughts about any future healthcare decisions with them. The person can then be sure that their care instructions will be followed if they are unable to make their own decisions.

If you do appoint someone to be your attorney, choose someone who shares similar opinions and ideas to you and has a good idea of your wishes. They are more likely to make the decisions you would want.


Making a PoA

You can only create a PoA if you are aged 16 or over, and are able to understand what it is and what it means for you. This is called having mental capacity. You can find example forms for each of the Powers of Attorney on the Office of the Public Guardian Scotland’s website.

Although you can create your own PoA, you may want to get help from a solicitor.

The solicitor will make sure that it meets all the requirements of the law.

A PoA must include a certificate signed by a solicitor or a medical doctor to say that you are capable of making the PoA. 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 PoA. You can phone the Office of the Public Guardian Scotland to find out the exact fees. 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. The Office of the Public Guardian Scotland will be able to advise you on this.

You may find it helpful to talk to a solicitor before making a PoA. 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 the solicitor’s fees for helping you make a PoA, 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. It is also helpful to let your GP know if you have made a PoA, so they can add this to the Key Information Summary (a document that includes key information about your wishes).


Welfare PoA 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 at the time and is known to still reflect your views.


Other things to think about

The power of your attorney stops as soon as you die. So if you have a Financial 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 will be looked after according to the instructions in your will. Bank accounts are also frozen at the time of a person’s death and cannot be used. So if you have a partner, you may want to consider putting bank accounts into both your names.

Back to Advance care planning in Scotland

Planning ahead

Planning ahead can help people know what care you would like if you become unable to make choices yourself.

Making a will

Having an up-to-date will ensures that your wishes for who you would like to leave your estate to are guaranteed.

Your wishes for your care

When you are planning ahead, it is important to think about how and where you would like to be cared for.

Advance Directives

An Advance Directive is a written statement of your wishes to refuse certain treatments in the future.

Funeral planning

Planning your funeral in advance means your family and friends can arrange the type of funeral you would like.

Mental capacity

The Adults with Incapacity (Scotland) Act 2000 aims to protect people who cannot make a decision for themselves.