Frequently Asked Questions

Who decides that I am incapable?
A medical practitioner such, as your GP, will make the decision as to whether you have capacity or not. If the medical practitioner determines that you are not capable of making or understanding decisions then you will not be able to sign legal documents or give instructions as to your welfare. It is at this point that a Power of Attorney would come into effect.


What happens if I do not have a Power of Attorney?
If you do not have a Power of Attorney and you subsequently lose capacity, your family or friends may have to apply to the Court for a “Guardianship Order” to deal with your finances and/or welfare. You can find more information about “Guardianship Orders” here.


Is a Power of Attorney not for people with lots of money/assets?
No, Power of Attorney can cover both financial and welfare issues. Financial issues can be as simple as requesting a new PIN number from the Bank or opening a new account.


What happens to my Power of Attorney?
The Power of Attorney must be registered with the Office of Public Guardian before it can be used. Further information on the process can be found on our website .


How long does it take to register a Power of Attorney?
The Office of Public Guardian has a target of 30 working days from receipt of the documentation; however electronic applications tend to be processed more quickly. We will always send documentation electronically unless we are unable to do so.


Can I cancel or amend my Power of Attorney once it is registered?
To cancel your Power of Attorney, you would have to send your request in writing to the Office of Public Guardian and you may need to provide evidence that you have capacity. Similarly, you can make an amendment to your Power of Attorney so long as you have capacity, however the Office of Public Guardian may charge a fee for this.


How do I access the Power of Attorney once it has been registered?
We are happy to provide you with a certified copy of the Power of Attorney when you require this.


Can my Power of Attorney be used before I become incapable?
Your Attorney can help you with your finances, if you wish, when you are still capable. You will have to give specific instructions to begin the Power of Attorney in this case. The welfare aspect of a Power of Attorney cannot be used until you are incapable of making those decisions for yourself.


Can my Scottish Power of Attorney be used in England?
A Scottish Power of Attorney can be used in England if the Organisation (e.g. the bank) accepts its authority. If the Organisation does not accept the Power of Attorney, they may require an endorsement of the Scottish Power of Attorney from the English Public Guardian or Court of Protection. If the Scottish Power of Attorney is not accepted without an endorsement, but the English Public Guardian or Court of Protection will not provide an endorsement, the Power of Attorney becomes a useless document.

If you are living in England and have a Scottish Power of Attorney (and are capable) it may be worth considering an English Power of Attorney. More information on the English system can be found at the Office of the Public Guardian for England & Wales website, telephone: 0300 456 0300 e-mail: customerservices@publicguardian.gsi.co.uk


Can a non-Scottish Power of Attorney be used in Scotland?
The position is similar to the English position. A non-Scottish Power of Attorney can be used in Scotland if the Organisation accepts its authority. If the Organisation does not accept the Power of Attorney, they may require an endorsement of the Power of Attorney, however there is no arrangement under the law for having this formally endorsed. The legislation suggests that a non-Scottish Power of Attorney is automatically valid in Scotland however there is no certainty.

The Office of Public Guardian will be able to provide more advise on this matter and have a procedure in place to help deal with these types of issues - opg@scotcourts.gov.uk


Can a Scottish PoA be used outwith the UK?
Each country will have its own set of rules and regulations governing Power of Attorney so you should check with the relevant local authority.


Where can I obtain more information?
If you have any questions about the Power of Attorney, or any part of the process, we will be more than happy to assist you. You can also obtain information from the Citizens Advice Bureau or from the Office of Public Guardian directly.