Power of Attorney in Scotland

The Adults With Incapacity Scotland Act 2000 (“the Act”) provides a framework to safeguard the welfare and finances of people who lack capacity. In my experience often clients approach me to discuss powers of attorney (“POA”) when they or their relative/close friend has (1) been in an accident, (2) is elderly or (3) diagnosed with a degenerative illness; all of which may render them incapacitated immediately or on a temporary or permanent basis in the foreseeable future.

I make it clear to clients of all ages that a POA is able to be entered into by anyone over sixteen years old and who has capacity (at the time of giving instructions and signing the POA). For example at any age you could be involved in a road accident which could render you incapacitated for a temporary or permanent period of time. Alternatively you could be elderly and suffering from cognitive failure which will likely render you incapax at some point in the future. In both circumstances unless you have nominated someone to act as your attorney in a formal power of attorney document, your next of kin, children etc. do not have the legal authority to make important decisions relating to your finances and welfare by virtue of their relationship to you. If your or a loved one’s capacity is in question, we would need to get a registered medical practitioner to clarify the position.

Applying for Power of Attorney, Intervention or Guardianship in Scotland

You cannot enter into a POA retrospectively once you or a loved one has lost capacity. In order to take control of the finances and/ or make decisions about someone’s welfare when they have lost capacity, you would need to apply to the Court to for a Guardianship Order. If you just want to control one particular matter (i.e the sale of a property) you can apply to the court for an Intervention Order. Applying for a Guardianship or Intervention order is expensive and time-consuming. It would be usual for legal fees to be four figures although legal aid is usually automatically available (albeit we do not offer legal aid for such cases). There will also be private hearings in Court where the prospective guardian may be required to attend. In comparison a POA is usually a simple and straight forward document to draft and register. It is my general practice to (i) advise my clients on the stylistic options available to them in terms of drafting their power of attorney, (ii) once they have been fully advised and made a decision I would then draft the POA, (iii) once the client is content with the draft I would then arrange for them to sign it under my supervision or a doctor depending on circumstances, (iv) I would then send a consent form to the persons nominated to be my client’s attorney(s) and (v) once the consent forms have been returned to me I would send all the relevant documentation off to the Office of the Public Guardian (“OPG”) for registration together with the OPG’s registration fee (which is currently £74). It is substantially cheaper, easier and less stressful to grant a POA than to apply to the Court to be a Guardian.

Welfare or Financial Attorney?

In terms of the financial aspect of a POA you can nominate someone to act on your behalf in relation to your finances under s.15 of the Act. Interestingly unless you state otherwise in your POA document pre-registration (by way of a springing clause or similar) your financial attorney will be able to act on your behalf as soon as your POA is registered by the OPG, irrespective of your status of capacity. In contrast s. 16 of the Act makes clear that your welfare attorney will only have authority to act on your behalf when (and only when) you have been deemed to have lost capacity.

Contact our Power of Attorney Solicitors in Wick & Edinburgh Today

For more information on Power of Attorneys, Guardianships and Intervention Orders on a no-obligation basis, please contact us via our online contact form. You can also contact Joanna W H Morris, Senior Solicitor directly at jwhm [AT] bbmsolicitors [DOT] co [DOT] uk or call 01955 604188.