Power of Attorney

A Power of Attorney (PoA) is a legal document that lets someone else make decisions for you if you can’t do it yourself. The person you choose to make these decisions is called your “attorney.” You can ask anyone you trust to be your attorney.

There are two main types of Power of Attorney:

1. Welfare Power of Attorney – This allows someone to make decisions about your health and well-being.
2. Financial Power of Attorney – This allows someone to make financial decisions for you.

You can choose different people for each type of PoA, or the same person can handle both. If you have more than one attorney, you can choose if they have to make decisions together or can make them on their own.

You decide when your Financial Power of Attorney starts, but your Welfare Power of Attorney will only begin if you can no longer make decisions yourself. This is sometimes called “losing capacity”.

Choosing someone you trust to be your Attorney is critical. It doesn’t automatically need to be family member – you could pick a friend, a lawyer or an advocate (although that may involve additional costs).

You can also add in a safety mechanism such as a clinical sign off for lack of capacity for your Welfare PoA. This means that you will still be in control of making all decision until you are no longer able to.

You can also choose when you want your attorey to start helping with finanical issues, or when they should stop.

Remember if you have concerns you can report these to the Office of the Public Guardian.

After setting up your PoA, it’s important to talk with your attorney so they understand what you want if you can’t make decisions for yourself later on. You might want to write down your wishes in a Future Care Plan.

Let your doctors and health professionals know who your attorney is, so they can contact them if needed.

To get a PoA, you need to choose someone to act on your behalf while you are still able to make decisions.

Here’s how to get started:

1. Talk to people close to you about why you want a PoA.
2. Decide who will be your attorney. You can choose one person for welfare decisions and another for financial decisions.
3. Once you’ve chosen, you need to register the papers with the Office of the Public Guardian.

Because it’s an important legal document, it’s a good idea to get help from a lawyer or solicitor to make sure everything is done properly.

A solicitor could be instructed to come to the hospital – this can happen pretty quickly. There may be a conversation between the solicitor and the medical team about who should sign the capacity certificate. Then an application needs to be made to fast track the PoA.

However, you need to be realistic, about the time left that someone has to live.

Another option would be a Future Care Plan; this would be beneficial so that everyone can contribute to the conversation. This means even if the PoA does not happen, the professionals will have a guide on the person’s wishes, and family/friends have a chance to discuss this with the person as well.

Consider if a solicitor could also complete a Will at the same time (this can happen at any time however the person must still have capacity to sign the document).

You can do it yourself – you may find a template online or stationary firms e.g. a pack from WH Smiths (check that it is Scottish). It is slightly cheaper if you go through a firm online (do your research) but still incurs a fee. In all instances you will need to pay for a certificate of capacity (GP/solicitor) and the registration fee with the Office of Public Guardian.

You can use Law Society of Scotland website to find a solicitor.

An impartial person must witness you and your Attorneys signing of your PoA. You cannot witness your Attorneys’ signatures, and they cannot witness yours.

Anyone can check on the Public Register Scotland: Public registers (publicguardian-scotland.gov.uk), there are 2 different emails for enquiries – one for PoA and one for Guardianship.

There are lots of changes you must tell the Office of the Public Guardian about. There may be costs associated with this. Visit their webpages for more information.

If you need to update either the grantor or attorney’s address then you can do this via a form sent to the Office of the Public Guardian.

If you wish to change who your Attorney is then you will likely need to make a new PoA. This will come with an additional cost.

Appointment as Attorney will continue until:

• if concerns have been raised – the Office of Public Guardian will investigate
• the Granter revokes/cancels the PoA 
• the Attorney resigns
• the Granter dies
• bankruptcy of the Attorney

Many people think that if they lose the ability to make decisions, their family can automatically help. But unless you’ve set up a PoA, your family can’t make decisions for you.

Without a PoA, the court will have to choose someone to be your “Guardian,” which can take a long time and be expensive.

Carer Information Scotland have more information on the guardian process.

You can choose anyone to be your Attorney so long as they are over 16. You can appoint either individuals or an organisation, such as a firm of solicitors, as your continuing (financial) attorney. However, individuals only may be appointed as welfare attorneys. The law says that someone who is currently declared as bankrupt cannot be a continuing attorney.

Anyone can be appointed to act as your Attorney. Some solicitors may be willing to be an Attorney, however there would be a fee for this. It is unlikely that a Health or Social Care professional could be your Attorney, instead they may need to apply to become your Guardian which is a different process.

No. There is no requirement to notify them when you begin exercising your powers. Attorneys are responsible for informing relevant individual authorities e.g. banks, care homes etc. when they start acting on behalf of the Granter. More information can be found in the factsheet for attorneys.

A copy of the document is sent to the person who has applied for the POA (the granter) – it would be up to the person/family to make a copy of the document for the Attorney.

Check the PoA Document – the first step is to review the PoA document itself. It may:

• Specify how decisions should be made (e.g. jointly or independently).
• Appoint a lead attorney or provide a dispute resolution mechanism.
• Include guidance or preferences from the granter (the person who granted the PoA).

Seek Legal Advice – it’s wise to consult a solicitor experienced in PoA and adult incapacity law. They can:

• Clarify legal responsibilities
• Help interpret the PoA document
• Advise on next steps

Involve the Office of the Public Guardian (Scotland) -the Office of the Public Guardian oversees attorneys and can investigate concerns about how attorneys are acting. They can:

• Refer serious matters to the court.
• Offer guidance
• Investigate complaints

The powers that an Attorney has are detailed in the PoA document. If they have Welfare PoA and the person has lost capacity, the Attorney will be involved in discussion around what is going on, conditions, results etc. You cannot access medical records.

We would suggest engaging a solicitor to draft the Will and this should be done when person has capacity but there is no reason why you cannot support someone to do this, even if you may be a beneficiary.

It is not possible in Scotland for an Attorney to change someone’s Will, irrespective of whether the Attorney is trying to act in accordance with the person’s wishes and in good faith.

No, when person dies the PoA stops, it is only active when the person is alive. It is Important for people to arrange a Will and appoint an Executor.

“Losing capacity” means you can no longer look after your own financial and personal matters. This can happen because of health problems like dementia, a stroke, or other conditions. In Scotland, a person is an adult at 16 and can make their own decisions unless a doctor says they can’t.

Signs that someone has lost capacity include:

• Not being able to tell other people about the decisions they want made
• Forgetting decisions
• Not being able to act on decisions
• Not being able to understand or make decisions

If someone has lost capacity, then they cannot make a PoA. Instead, someone will need to apply for Guardianship – this could be a friend, family member or the Local Authority.

If assessed as not having capacity, and there is family, they can seek Guardianship not PoA, Local Authorities can also apply for Guardianship.

Depends on the level of capacity – mental capacity is the ability to make an informed decision based on understanding a situation, the options available, and the consequences of the decision. Just because someone is not able to make one decision, this does not mean they can’t make other decisions.

An assessment of capacity will be required to confirm this. 

Attorney’s should act on behalf on the Grantor, so it is important that everyone has had lots of conversations about what matters to individuals. These could be recorded in a Future Care Plan which the Attorney can use to help make decisions at a later date.

If anyone has concerns about the Attorney and decisions that are made they can refer it to the Office of the Public Guardian.

There is a cost for registering a PoA. There may be other costs like legal fees or getting a “certificate of capacity”. However there may be financial help available to cover these costs. You can ask Citizens Advice Scotland website for more details.

You can apply for exemption of the Office of the Public Guardian fee or Legal Aid towards a solicitor drafting a PoA (need to check they offer this service) – both have criteria you need to meet.

You may also be able to get a fee waived or reduced for your capcity certificate, however you would need to speak to your solicitor or GP.

You don’t need to use a solicitor to draft your documents, and this can reduce the cost. However because this is a legal process, if you have any anxiety about writing your own documentation, or unsure how to go about this, then we would recommend seeking legal advice.

Do not be afraid to contact various firms and enquire about charges, and remember to ask about Legal Aid if you think your are eligible. For more information on legal aid visit Scottish Legal Aid Board | Solicitors for Older People Scotland

Yes, some firms will offer a reduction for two people, the average is around £600+. You can also do this through an online firm which can be cheaper. Remember to shop around and do your research.

It does vary, but again you can apply for exemption for part fees (criteria applies) or check if you are entitled to Legal Aid. Guardianship has different fees for various parts of the process, and it also depends on the circumstances of the individual. Check the Public Office of Guardian (Scotland) website or give them a call if you need more information (01324678300 and press option 0).

“Continuing (financial) powers can be used by the attorney immediately after the PoA document has been registered with the OPG. If the PoA is only to be used in the event of your incapacity, it must clearly state that the powers are not to be used until this happens. You may wish to add a statement about who should make this decision about your incapacity” (Office of Public Guardian).

You cannot be a Financial Attorney if you have been declared bankrupt. It does not affect Welfare Powers.

If you were granted the powers before your became bankrupt then the Office of Public Guardian may remove these powers. In these situations we would recommend seeking legal and/or financial advice.

Financial Powers are in place as soon as they are registered with the Office of Public Guardian. Remember you need to inform organisations of Attorney status and evidence this. Consider – Is it time for an assessment of capacity to confirm this?

Yes, Financial PoA is activated right away and can be used when needed.

Scammers – POA wouldn’t affect this. Some banks may have other things set up for vulnerable customers – you would need to speak to the bank. At least if you had Financial PoA and the person was scammed you would be able to speak to the bank on their behalf which might be less stressful.

There are other protections set up if someone is scammed – Citizens Advice: Check if you can get your money back after a scam

The solicitor would advise on the detail of the Financial PoA and what areas to include e.g. what your attorney is responsible for – the financial areas they can act on, not the detail of what you have.

It is good to speak to the bank/organisations though if you are coming to a point where you are going to activate powers.

You should also speak with the person who is going to be your Attorney to let them know what accounts you have.

If you don’t have a Welfare PoA set up, it can cause delays in your care. For example, some people stay in the hospital longer than needed because there is no one to make health decisions for them. This means that doctors and nurses are less able to help other patients who need care.

Right now, many people in the NHS Greater Glasgow and Clyde have to stay in the hospital longer because they don’t have a Welfare PoA. This takes up beds that could be used for other patients. It also means ambulances and staff can’t help as many people in the community or in emergency care.

Having a Welfare PoA helps keep things running smoothly and ensures patients get the care they need faster.

If you have Welfare Powers, you may need to make decisions about medical treatment or care homes (if they have lost capacity). But it is a good idea to discuss this with the person in advance if there is a risk of losing capacity.

If your relative thinks they would like to move into a care home, the first step is to contact Social Services who can:

• help you both decide if a care home is the best option, or whether a package of care could allow them to stay in their own home, if they would prefer that
• assess both their care needs and their eligibility for financial help towards care costs (this is important even if they intend to pay for their own care to begin with, in case they need financial help in the future)
• provide help finding a suitable care home – the local council has a responsibility to find a suitable place for anyone they have assessed as needing care in a care home

Example: Perhaps the granter has stated that if their cancer returns, they wish to receive chemotherapy only but not radiotherapy because of the side effects – if it does return and they have lost capacity and radiotherapy is now more advanced without the side effects – can the Attorney ask for this to be considered as well?

Refusals of certain treatment are usually recorded in an Advanced Statement or Advanced Directive. In Scotland these are not legally binding documents, however clinicians and courts would use these to guide decision making if there were any disputes.

If a decision about treatment needs to be made, clinicians will have shared decision making conversations with the Attorney to discuss what might be appropriate. They can use documents like Advanced Statements and Future Care Plans to help try and understand what might be the best plan of action, as well as the information the Attorney may share about the motivations and priorities of the Granter. This might result in certain treatments being given.

This is why it is so important to have lots of conversations with your Attorney about what matters to you and record this in things like a Future Care Plan so everyone can understand what your motivations are.