What is Power of Attorney?

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1. What is a Power of Attorney?

A Power of Attorney is a written, legal document giving someone else (your Attorney), authority to take actions or make decisions on behalf of you (the granter). You choose the person(s) you want to act as your Attorney and what powers you want the Attorney to have. A Power of Attorney is intended to ensure that your financial affairs and personal welfare can still be dealt with/protected in the event of you being unable to act on your own behalf.

2. What is incapacity?

If you lose capacity, it means that you are no longer able to look after your financial and personal affairs, perhaps due to illness e.g. dementia/stroke etc. The Adults with Incapacity (Scotland) Act 2000 sets out certain situations in which you could be deemed to be incapable.

3. Are Powers of Attorney not just for elderly people?

No – anyone over the age of 16 can grant a Power of Attorney. Accidents or illness can occur at any age.

4. Are Powers of Attorney not just for the wealthy?

No – a Power of Attorney is not just about looking after your financial affairs. It also allows you to choose who should decide personal welfare issues (e.g. where you live/who looks after you etc).

5. I am married and have grown-up children; surely my family can act for me and make decisions on my behalf?

No one has an automatic right to do this. There must be a legal document appointing your chosen person/persons as your Attorney. Unless a person has been legally appointed by you to act, they have no authority to do so.

6. What sorts of powers can be included in the Power of Attorney deed?

The deed can cover both financial and welfare arrangements, or you can have separate deeds to cover your financial affairs and welfare matters.

7. Who should I appoint as my Attorney?

You can appoint anyone you wish to be your Attorney, e.g. a family member, friend, solicitor or other professional adviser. It’s up to you whether you include the same person(s) as both financial and welfare or if you have separate Attorneys to carry out the different roles.

It is better to appoint more than one Attorney in case your attorney is unable to act for any reason – you can appoint Joint Attorneys with similar or different powers, or one or more substitute Attorneys to take the place of an Attorney who dies, loses capacity or resigns.

8. What happens to my Power of Attorney once it has been signed?

If the Power of Attorney is simply being used as a “rainy day” document and you do not need your Attorney to exercise his powers immediately, it can simply be stored in a safe place, e.g. the safe at your solicitor’s office, until it is required.

If you wish your Attorney to act immediately, the document must be registered with The Office of the Public Guardian. The deed itself, together with a registration form signed by your Attorney and the registration fee (currently £73) is sent to the Public Guardian and, once the deed has been registered, the Office issues a certificate to your solicitor and to you.

Once a Power of Attorney has been registered, the financial powers are effective immediately but the welfare powers are only effective once you lose capacity, i.e. once you are no longer able to act on your own behalf.

9. What if I appoint my husband/wife as my Attorney and then we split up?

Unless the Power of Attorney deed specifically provides otherwise, your spouse’s powers to act on your behalf would cease upon your divorce.

10. If my Power of Attorney is registered, can I still change my mind?

As long as you have capacity, you can revoke the powers granted in your Power of Attorney. To do so, you must give written notice to The Office of the Public Guardian.

11. How will my Attorney know my feelings/wishes if I lose capacity?

You should discuss both the financial and welfare powers with your Attorney and make sure that he/she knows what decisions/actions you would wish to be taken on your behalf in the event of you losing capacity.

Further Information

If you have more questions that have not been covered in the above, the Mental Welfare Commission for Scotland has created a useful guide, downloadable from the link below.

Common Concerns with Power of Attorney