Planning for the future is something many people put off, but setting up a Power of Attorney (PoA) can provide reassurance for both you and your loved ones. A Power of Attorney allows someone you trust to make decisions on your behalf if you are or become unable to do so yourself. In Scotland, this is governed by the Adults with Incapacity (Scotland) Act 2000.
Whether due to illness, an accident, ageing, or simply wanting support with your affairs, having a PoA in place can make a significant difference. Without one, family members may need to apply to the court for a Guardianship Order, which can be more stressful, time-consuming, and costly.
What is a Power of Attorney?
A Power of Attorney is a legal document that gives another person, known as your 'attorney', authority to act on your behalf. In Scotland, there are three main types of PoA:
Continuing Power of Attorney
This covers financial and property matters, such as:
- Managing bank accounts
- Paying bills
- Handling property transactions
- Dealing with pensions or investments
A Continuing PoA can start immediately or only come into effect if you lose mental capacity.
Welfare Power of Attorney
This allows someone to make decisions about your health and personal welfare, including:
- • Medical treatment
- • Care arrangements
- • Daily living decisions
A Welfare PoA only becomes active if you are unable to make these decisions yourself.
Combined Power of Attorney
Many people choose a combined PoA, which includes both financial and welfare powers within one document.
Why Should You Set Up a Power of Attorney?
There are many reasons why someone may wish to arrange a PoA, including planning ahead for later life, preparing for unexpected illness or injury, ensuring trusted people can manage affairs quickly if needed, avoiding delays with banks, healthcare providers, or legal matters, and providing peace of mind for family members.
A PoA is not only for elderly individuals. Many people put one in place while they are healthy as part of sensible future planning.
How to Set Up a Power of Attorney in Scotland
1. Decide What Powers You Want to Grant
The first step is deciding what authority your attorney should have. Some people only want assistance with financial matters, while others want welfare decisions included too. Your circumstances, family situation, and future plans will all influence this decision.
2. Choose Your Attorney
You should choose someone you trust completely, as they may be responsible for important decisions affecting your finances, property, health, and wellbeing.
You should also consider whether the person is willing and able to take on the responsibility, as acting as an attorney can involve making significant practical, financial, and welfare decisions on your behalf.
Many people appoint a spouse or partner, an adult child, another close family member, or a trusted friend. You can appoint more than one attorney if you wish. Some people choose joint attorneys so decisions are shared.
3. Have the Document Prepared
Although it is possible to prepare a PoA yourself, many people use a solicitor to ensure the document is legally correct and tailored to their wishes.
A solicitor can also explain which powers are appropriate, ensure nothing important is missed, confirm the document complies with Scottish law, and help avoid problems later on.
The document must include a certificate confirming that you understand the nature and effect of the PoA and are acting willingly. This certificate must be signed by a solicitor or medical doctor, after interviewing you.
4. Register the Power of Attorney
In Scotland, a PoA must be registered with the Office of the Public Guardian (Scotland) before it can be used.
This involves submitting the signed PoA document, completing the registration forms, and paying the registration fee. Once registered, the PoA becomes legally effective.
Your chosen attorney must sign the registration form to confirm their consent to act as your attorney.
What Responsibilities Does an Attorney Have?
An attorney must always act in the best interests of the person who granted the PoA. Their responsibilities may include managing money responsibly, keeping financial records, making decisions carefully and fairly, and following the wishes of the granter where possible.
The Office of the Public Guardian can investigate concerns if someone believes a PoA is being misused.
What Happens If You Don’t Have a Power of Attorney?
If someone loses capacity without a PoA in place, loved ones may need to apply for a Guardianship Order through the court system. This process can take several months and may involve ongoing court supervision. The costs of applying for a Guardianship Order are high and the Order has to be renewed periodically.
Setting up a PoA early can help avoid unnecessary stress and ensure decisions can be made quickly by someone you trust and who knows you well. It is also one of the most important steps you can take to protect your future interests and provide reassurance for your family.
The team at d and h can guide you through the process, explain your options clearly, and ensure your Power of Attorney reflects your wishes and circumstances.