Powers of Attorney

What is a power of attorney?

A power of attorney is an authority given by an individual (known as the Granter) to another person(s) (known as the Attorney) to deal with the Granter’s affairs. This could relate to financial matters or welfare matters.

Powers relating to the Granter’s financial/property affairs are known as “continuing powers” and may be given with the intention of taking effect immediately and continuing upon the Granter’s incapacity or beginning on the incapacity of the Granter. Welfare powers cannot be exercised until such time as the Granter has lost the capacity to make these decisions. Granters have scope to grant whatever powers they choose. However as these powers will be strictly interpreted; the Granter should ensure that the powers granted are specific and cover all the relevant aspects of their affairs. A power of attorney document should contain either continuing powers, welfare powers or a combination of both.

When a continuing power of attorney is to begin only in the event of incapacity or if welfare powers are conferred, the document must include a statement confirming that the Granter has considered how their incapacity is to be determined. It is suggested as good practice for the Granter to also consider stating in the document how incapacity is to be determined or highlighting who should determine when the Granter has lost capacity.

Who can I appoint as my attorney?

The attorney should be someone that you trust. You can appoint who you want, this could be a relative, a friend or a professional person such as a solicitor or accountant or a combination. You can appoint someone to deal with financial matters and someone different to deal with personal welfare.

Who cannot act as an attorney?

Someone who is currently declared as bankrupt cannot be appointed or act as a continuing attorney. For the purposes of The Adults With Incapacity Act (Scotland) Act 2000 a person is bankrupt if their estate has been sequestrated for insolvency or a protected trust deed has been granted. We can advise you further on this.

How do I create a power of attorney?

You will need a written document, a certificate of capacity and a registration form, all of which we can prepare for you.

  1. The written document

In order to create a power of attorney a written document is needed which sets out the precise powers that the Granter wishes the Attorney to have. The document must be signed by the Granter. It must also state clearly that the powers are continuing, welfare or a combination of both.

  1. The certificate of capacity

The document must also include a statutory certificate signed by a solicitor registered to practice in Scotland, a practising member of the Scottish Faculty of Advocates or a registered and licensed medical practitioner which confirms that:

  • They have interviewed the Granter immediately before he/she signed the power of attorney document;
  • They are satisfied either through their own knowledge or by consulting another person that the Granter fully understands what he/she is doing and the nature and extent of the powers he/she is giving.
  • They have no reason to believe that the Granter is acting under any undue influence.
  • A welfare power of attorney
  • A continuing power of attorney
  • A welfare and continuing, power of attorney.
  1.    The registration form

This requires to be completed and signed to enable the power of attorney to be registered.

Can the power of attorney be revoked?

The Granter can revoke a continuing or welfare power of attorney or any of the powers granted in it once it has been registered with the Public Guardian. The Granter must give notice of the revocation in writing.

If a Granter wishes to revoke either some of the powers or all of the powers in the power of attorney, a certificate completed by the prescribed person (registered and licensed medical practitioner or a practising solicitor or a legal advocate) must be attached to the letter informing of the revocation. The date when  the Granter subscribes the revocation must be the same day he/she is interviewed by the prescribed person.