What is a Power of Attorney?  

If you, unfortunately, become unable to make decisions about your health, welfare and finances, do you know who would step in and make these decisions for you?  Unless you had a PoA, no one would have the legal authority to make these decisions on your behalf. Not even your spouse or children. 

This is where a PoA, or a Power of Attorney, comes in. Simply put, this is a necessary legal document for you to appoint someone you trust as your Attorney. Ultimately granting them legal authority to make decisions on your behalf.  This document must be registered at the Office of the Public Guardian for Scotland before your Attorney can use it to act on your behalf.  

 

Types of Power of Attorney  

There are three types of Power of Attorney that you can put in place:  

• Continuing power of attorney – this covers financial matters, granting your attorney legal authority to make decisions about your money, property and other assets  

• Welfare power of attorney – this covers your health and welfare, granting your attorney legal authority to make decisions about your care, medical treatment, living conditions, and general welfare  

• Continuing and Welfare – combining both.

   

   

Most people opt to grant a combined Continuing and Welfare Power of Attorney.   

 

Who can be granted a Power of Attorney  

Anyone over the age of 16 with the capacity to do so, although there are restrictions if you have been made bankrupt.  

 

Are Powers of Attorney not just for old people?  

This is a common misconception.  The reality is that accidents, illness, or rapid mental function decline can happen to anyone at any age. If, unfortunately, you were to suffer an accident or befall an illness that impacts your ability to sensibly manage your affairs without a PoA in place. No one will be able to step in and manage these for you. Your family could be faced with a lengthy and expensive guardianship Court process as their only option.  

This is why it’s crucial to act before it’s too late.  Only you can put a Power of Attorney into place. You need to do this whilst you have a full testamentary capacity (meaning you must fully understand its implications).  If you wait until it’s needed, it may be too late.  

As part of the PoA process, a solicitor registered to practise law in Scotland, a practising member of the Faculty of Advocates or a registered UK medical doctor who holds a licence to practise must carry out an interview with you and confirm that you understand the nature and impact of making a PoA.  If the person is satisfied of this they will complete a certificate of capacity which forms part of your PoA document.

 

Do you need to use a solicitor?  

There is no legal requirement for a solicitor to draft your power of attorney. However, the drafting of your PoA document is open to interpretation. Making it vital that it is drafted correctly. The Office of the Public Guardian for Scotland cannot help you draft a Power of Attorney, nor can they provide legal advice.  Remember that a solicitor, practising member of the Faculty of Advocates or a doctor must complete and sign a certificate of capacity. It makes sense for your appointed solicitor to deal with your Power of Attorney from beginning to end.

andersonbain can handle your initial instruction all the way through to registration.  We can take your instructions remotely via email, telephone or in our office. However, the signing appointment must be face to face, this includes zoom calls as well as in person. We are also able to offer home and hospital visits in the local area for an additional charge where there may be mobility or other concerns.  

  

Attorney Duty to Keep Records  

Attorneys acting on your behalf have a duty to keep records of their actions. Continuing attorneys ideally should keep an ongoing financial accounting in relation to your property and financial matters.  Welfare attorneys should do the same with records relating to your welfare issues.  Guidance can be found in the Code of Practice by the Office of the Public Guardian for Scotland.  

  

Can I Change or Cancel a Power of Attorney after registration at OPG?  

If you still maintain a capacity to make this decision, then yes, you are able to amend or cancel your PoA at any time. 

 

Timescale  

Many people ask how long it will take to complete a Power of Attorney.  The drafting and execution of the Power of Attorney can be done relatively quickly.  However, OPG have a significant backlog in registrations. Currently, you could be waiting more than 6 months for your Power of Attorney to be registered.  OPG may grant a plea for expedition (in which case registration should be within two weeks) for urgent cases. However, strict criteria has to be met. This criteria includes losing the capacity to make urgent decisions about your affairs, admittance to hospital hampering the ability to take urgent action or being at risk of financial harm and not being able to act in your own interests, interests such as paying bills and fees. 

 

Are Powers of Attorney registered in Scotland valid elsewhere?  

This depends.  Different jurisdictions will have different rules.  If you hold assets abroad – for instance a holiday home or even foreign bank accounts. It is advisable that you check whether your Power of Attorney registered in Scotland will be legally valid and accepted in the country in question.  If in doubt, the recommendation is to execute another Power of Attorney in said country in accordance with local laws, to ensure that your foreign assets can be dealt with should you unfortunately become incapacitated.  

 

Cost

Our fee quotation for a Power of Attorney is £290 plus VAT.  

For couples instructing mirrored POAs (ie, the POAs mirror each other with the same provisions) this is restricted to a total of £450 plus VAT for both.  

Additionally, the Office of the Public Guardian charges a registration fee of £99 per each POA.