Lasting Power of Attorney (POA) in Scotland

There may come a time in your future when you’re incapable of making decisions for yourself regarding your finances and welfare. It’s an unwelcome thought for many, but it’s important to make provision for this eventuality by appointing a Power of Attorney. In Scotland, there are some differences in POAs, so this article covers Scottish guidance.

Why appoint a POA?

Should you suffer a serious head injury or illness that leaves you incapable of looking after your own affairs, or if you’re diagnosed with Alzheimer's or dementia, having a POA in Scotland ensures that there is someone you trust who is ready and willing to take care of your finances and wellbeing on your behalf.

You may assume that your spouse, partner or another family member will automatically step in to take care of you and your money should you become incapable, but without appointing them as POA, they have no legal right to do so. By law, written consent is required from the individual for a person to act on their behalf.

Power Of Attorney (POA) in Scotland

In Scotland, there are two types of POA: Continuing Power of Attorney and Welfare Power of Attorney.

Continuing Power of Attorney (POA) in Scotland

Appointing someone as your Continuing Power of Attorney in Scotland then gives them the right to look after your financial affairs and property matters. It can be given with the intent of taking effect immediately and continuing upon your incapacity, or only coming into effect once you are unable to manage your own affairs. Your Continuing Power of Attorney is allowed access to all information relating to your finances and can help take care of things such as:

• Managing your bank accounts and paying bills

• Collecting your pensions or allowances

• Managing tax returns and claims for tax

Welfare Power of Attorney (POA) Scotland

In Scotland, a Welfare Power of Attorney gives someone permission to take care of your health and welfare. This is the person who will make any decisions about where you will live, what you will eat and wear, and any activities you might engage in. They will also be responsible for making decisions about any medical care you might receive and your end-of-life care. Your Welfare Power of Attorney should be made aware of things such as:

• Your likes and dislikes

• Activities you enjoy, such as walking, reading, watching television, music

• What you like to wear

• What medical treatments you agree to and in what circumstances

• When you like to go to sleep and wake up

A Welfare Power of Attorney in Scotland does not come into effect until you have been declared incapable of looking after yourself.

If you only appoint a Continuing Power of Attorney, that person can also make decisions about your health and welfare. This is often the simplest and most cost-effective option. It’s up to you what powers you choose to grant your Attorneys, but remember, in Scotland a POA is a powerful document and it’s recommended that you seek professional legal advice when completing one.

Appointing a POA in Scotland

In Scotland, the person appointing the POA is known as the Granter and those given POA are known as Attorneys. It’s possible for a Granter to appoint more than one Attorney to handle their affairs should the need arise. There is a charge of £83 per POA.

It’s also wise to appoint a Substitute Attorney. This is someone who will take over in the event the Attorney is unable to act.

Once the POA application has been completed, it must be signed by a solicitor to confirm the Granter understands the document. A medical professional must also sign it to confirm the Granter is of sound mind and not under duress at the time of making the POA application.

The application must then be sent to the Office of the Public Guardian Scotland for registration. The person responsible for making the submission, usually a solicitor, is known as the Sender. Registration takes approximately 20-25 weeks and Continuing POA cannot be granted until registration is complete.

Up to two people, known as Specified Persons, can be nominated to receive a copy of the POA, however, they must be named on the document. Copies are issued to Specified Persons for information purposes and are not to be used by the Attorney when exercising powers.

Conclusion

While we all hope there never comes a time when we’re unable to look after ourselves or our own affairs, it’s important to have a POA in place who can step in should the need arise. By appointing a POA in Scotland, you can choose individuals whom you trust to fulfil this role.

For professional advice on applying for a POA in Scotland, contact the team at CTT Legal.