Power of Attorney — Scotland

Powers of Attorney

Why is a Power of Attorney important?

A continuing and welfare Power of Attorney allows a trusted individual –– be it a family member, or a trusted friend –– to take care of matters such as money, property, health, and personal welfare if you become too unwell at any time to make decisions for yourself. The document is called a “Power of Attorney”. The person or people you appoint is known as “the Attorney”.

The Attorney will act for as long as you need their help. This might be a permanent agreement, but the document might be needed only as a temporary measure until your recovery.

A Power of Attorney document ensures that your affairs are handled by someone you trust to take proper care. This may include signing documents on your behalf, dealing with finances, or consenting to medical treatment. A legal written document for a Power of Attorney can only be signed if the person granting authority has the full capacity to sign the document. Therefore, we highly recommend having a Power of Attorney as a matter of “good housekeeping.”

We hope that it will not be needed and that you can make your own decisions during your lifetime, but if you are not, you will have planned for that. If you do not have a Power of Attorney in place and you become very unwell or have an accident, it is often necessary to apply to Court. The Court process of having someone appointed to be your decision-maker if you have lost capacity without a Power of Attorney is much more complicated, expensive, and can take many months.

Appointing an Attorney

How to draft a Power of Attorney document

An attorney in this context is an individual (not to be mistaken for the word “attorney” which is a lawyer in the United States of America). The first stage is to decide who you would like to appoint as your attorney. Remember, you can appoint more than one individual, and you can also have substitute attorneys.

The Power of Attorney in Scotland must be accompanied by a capacity certificate from either a medical practitioner or a practising solicitor in Scotland.

Whoever you appoint as your attorney should be over the age of 16 years old, must be willing to take on the role and must not be bankrupt. This should be an individual that you trust to make important decisions on your behalf. If you decide to appoint more than one Attorney, it is important to think about the practicalities of whether you would like one of the attorneys to be able to make decisions alone without consulting the other attorneys.

You will also need to specify the powers granted to each attorney.

At Watermans, we can listen to your circumstances, provide advice and draft your Power of Attorney document, which is then signed in the presence of a witness and a solicitor. We recommend your Power of Attorney document is then registered with The Office of the Public Guardian in Scotland.

We are here to offer expert advice and help you every step of the way.

What is the Office of the Public Guardian?

The Office of the Public Guardian in Scotland (OPG) is a public body responsible for safeguarding the rights of adults who are incapable of making their own decisions. It oversees matters relating to powers of attorney, guardianship, and other legal tools developed to help vulnerable adults. Some of their duties include:

• Registering powers of attorney
• Supervising court-appointed guardians
• Investigating concerns
• Maintaining public registers
• Providing further information and guidance

No Power of Attorney?

What if I don’t have a Power of Attorney?

Unfortunately, it is impossible to foresee the future and know when someone may need a Power of Attorney. It is not only elderly people who are encouraged to appoint one; accidents and illnesses can affect people of all ages. If you are rendered incapable of caring for yourself, your property or your finances and don’t have a Power of Attorney in place, a loved one will need to apply to the Sheriff Court for a Guardianship or Intervention Order.

This is a court order granting the applicant the legal authority to make financial and welfare decisions if he or she no longer has the capacity. Although serving the same function, a Guardianship Order is generally only valid for a fixed period of time.

Is Power of Attorney the same as Guardianship?

The key difference, while their functions are the same, lies in who makes the appointment: a court grants the Guardianship Order, which appoints the Guardian, while a person appoints an Attorney under a Power of Attorney document.

The financial/continuing attorney fulfils the same function as a financial guardian appointed by a Court. A welfare attorney has a similar role to a welfare guardian. A continuing attorney or guardian deals with financial affairs and property, and the welfare attorney or guardian covers personal welfare and healthcare.

In terms of benefits‌, Power of Attorney is preferable as it avoids the time, cost and complexities involved in guardianship orders.

Why Watermans?

Why should I choose Watermans to draft my Power of Attorney document?

Our dedicated team of solicitors are here to help you every step of the way. We understand that making a Power of Attorney document may seem like a complicated and daunting task, but we take the hassle out of the legal side of things for you so you can concentrate on getting your affairs in order.

At Watermans, we are here to offer straightforward legal advice and a confidential, professional service, ensuring that the Power of Attorney relates to your specific needs and circumstances. Deciding to make a Power of Attorney document is an important life decision, and we want to make that process as easy as possible for you.

We offer the following prices for our Power of Attorney services:

• Single Power of Attorney – £325 plus VAT and Registration Dues

Our service includes meeting with you so that:

• we fully understand your individual circumstances and what your document should cover
• we can provide advice on the form your Power of Attorney should take and whether it should be immediate or suspended to some time in the future
• we liaise with your attorneys and obtain their consent to act for you
• we provide the necessary certificate of capacity and register your document for you with the Office of The Public Guardian in Scotland