How does a Power of Attorney work?

It is important to understand that you, the granter, are in control of the Power of Attorney while you have capacity. You decide who will act for your financial and welfare affairs. You decide what powers your Attorney will have. You decide when the Power of Attorney will come into effect.


WHO CAN MAKE A POWER OF ATTORNEY?

Anyone with capacity over the age of sixteen.

Generally speaking it is never too soon to make a Power of Attorney but it can be too late as once capacity is lost you can no longer sign legal documents, so can then no longer grant a Power of Attorney. There are restrictions if you have been sequestrated which we can discuss with you separately.


WHAT TYPE OF POWER OF ATTORNEY?

There are three types of Power of Attorney:

Continuing Power of Attorney: specifically deals with financial affairs, including property matters.

Welfare Power of Attorney: deals with your personal matters such as health, medical and welfare decisions.

Combined Power of Attorney: as the name suggests this combines the Continuing and Welfare Power of Attorneys and allows for decisions over financial and welfare/ health matters.

We strongly recommend a Combined Power of Attorney: If you only have a Continuing Power of Attorney and then lose capacity there will be no one to make medical decisions on your behalf. Similarly, if there is only a Welfare Power of Attorney in place then how will your family deal with your finances, such as care costs or even the simple matters like requesting a new pin number for your bank?

We expect that a Combined Power of Attorney will cover the needs of 90% of users but of course we will always adhere to your instructions. You are therefore free to select a Welfare or Continuing Power of Attorney.


WHO CAN BE MY ATTORNEY?

You can choose anyone you trust who is over the age of 16 to be your Attorney (so long as they are not currently bankrupt). Clients usually choose a spouse/partner, family member, friend, solicitor or accountant. You can choose more than one Attorney or a ‘substitute’ Attorney in the event that your Attorney cannot act for you when the time comes. You can also choose one Attorney to deal with financial matters and another to deal with your personal welfare.

If you do appoint more than one Attorney, you have the option to grant each Attorney the power to make individual decisions on your finances/welfare or joint decisions. If you choose to allow them joint decision making then one Attorney will be able to make a decision without consulting the other (although they must keep a record and act in your best interests).


WHAT POWERS WOULD I BE GRANTING TO MY ATTORNEY?

When granting a Power of Attorney, you must have the fullest faith and trust in the person you appoint as decisions they made or documents they sign will be binding as if made/signed by you personally.

No one can see the future or the circumstances which might apply at the point a Power of Attorney comes into effect so we recommend giving your Attorney wide powers to cover the unforeseeable.


WILL MY ATTORNEY BE ACCOUNTABLE TO ANYONE?

Attorneys are not permitted to do as they please with your affairs and must act in your best interests: it is your welfare and your finances!

There are principles set out in Adults with Incapacity (Scotland) Act 2000 and a Code of Conduct set out by the Scottish Government which must be followed by your Attorney.

Attorneys can be removed if they are found not to be acting in your best interests and it is the responsibility of the Office of the Public Guardian to deal with such matters.


WHEN WILL MY POWER OF ATTORNEY COME INTO EFFECT?

Granting a Power of Attorney is not necessarily an indication that you may lose capacity in the near future.

Documents can come into effect immediately if required but can also be “postponed” to only come into effect when you no longer have capacity which will be decided and confirmed by a professional medical practitioner.

Once in force the Power of Attorney will remain in effect until you regain your capacity or until your death.


HOW MUCH WILL IT COST

We offer the following services at very competitive prices:

Document Only

Upon receipt of your instructions we will prepare and send you all the necessary documentation with advice on completing the process for a cost of £29.99.

With this option it will be for you to deal with registering the Power of Attorney with the Office of the Public Guardian. The cost of registration is £73 and is payable directly to the Public Guardian. You can find more information on this process here.

Check and Send

For £49.99 you can choose to return the signed Power of Attorney and supporting documentation to us to be checked and registered.

We will confirm the documentation has been completed and signed correctly and will then proceed to register your Power of Attorney. As mentioned the cost of registration is £73 and we will ask that you also ensure we are given sufficient funds to cover this cost also.