FAQs
Drafting your PoA
- Can OPG help me draft my PoA?
- Can you recommend a solicitor to help me with my PoA?
- Can I draft my PoA without the help of a solicitor?
- When do I sign my PoA document?
- My client can’t read English, how do I approach providing a PoA?
- Advance Directive/Living Wills
Who to appoint
- Can my attorney live in another country other than Scotland?
Prescribed certificate
- Who can sign the certificate of capacity?
- Can a solicitor witnessing or signing a PoA on behalf of the granter also complete the Schedule 1 certificate?
- As a solicitor can I sign this on the basis of having consulted the attorney(s) rather than an individual not involved in the process?
- I am a trainee solicitor can I sign the prescribed certificate?
Registering your PoA
- Can my PoA be registered urgently?
- Do I need to register my PoA straight away?
- I am going on holiday and wish to appoint an attorney to look after my affairs in my absence. Do I have to register it?
- Do pre Act PoAs have to be registered?
- Does the PoA document need to be formally activated with OPG when I start acting as attorney?
Refunding the registration fee
- I am a solicitor and my client, the granter of a power of attorney, has died prior to it being registered. Can the registration fee be refunded?
Duplicate copies of your certificate and PoA
- I have lost my PoA with the certificate of appointment, can I get a copy?
Joint bank accounts
- I want to transfer a share of funds from a joint bank account
Bankruptcy
- What is bankruptcy?
My attorney has been declared bankrupt, what happens then?
- I have granted a PoA and have been declared bankrupt, what happens next?
Deprivation of Liberty
Can a welfare attorney agree to deprive or restrict the granter of their liberty?
Changing your address
- I am a granter/attorney and have moved address, do need to tell you about this?
Using your PoA in Scotland or England
- Can a Scottish PoA be used in England?
- Can a non-Scottish PoA be used in Scotland?
- Can a Scottish PoA be used outside the UK?
- Is OPG part of the 'Tell Us Once' service?
Wills
Can you help me with enquiries about Wills?
Drafting your PoA
Q. Can OPG help me draft my PoA?
A. No. We are unable to help you draft a PoA nor do we provide template PoA documents as our role is to provide general advice and a registration service. You will need to arrange for your own PoA to be drafted. Most solicitors should be able to assist you to draft a PoA and provide legal advice. Alternatively, other companies and stationery shops sell PoA packs.
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Q. Can you recommend a solicitor to help me with my PoA?
A. No. We are unable to recommend solicitors but we would suggest that you approach a solicitor who specialises in the Adults with Incapacity (Scotland) Act 2000. The Law Society of Scotland has a database of solicitors based throughout Scotland. This may help you to find a solicitor in your local area that can help.
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Q. Can I draft my PoA without the help of a solicitor?
Yes. You do not need to use the services of a solicitor to draft a PoA. However please note that the drafting of your PoA is important as the wording of the document will be open to interpretation. We would recommend you take legal advice when drafting a PoA.
We provide some general information on what the PoA document looks like and the necessary detail that should be included in a PoA but we cannot help you draft a PoA nor can we provide legal advice.
Please note that if you intend drafting your own PoA you will need to arrange for either a solicitoror a practising member of the Faculty of Advocates or a doctor to complete the schedule 1 certificate of capacity.
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Q. When do I sign my PoA document?
If you are taking your PoA document to a prescribed person i.e. a solicitor or a practising member of the Faculty of Advocates or a medical doctor for them to complete the Schedule 1 certificate of capacity, please note that you should sign the PoA document during the interview with them and not beforehand.
It is a registration requirement that the date the granter signs their PoA is the same date when the prescribed person carried out the interview with the granter. This is because when the prescribed person signs the certificate they are confirming that they interviewed the granter immediately before the granter signed the PoA document. Therefore the date the granter signs and the date of interview must match in the PoA . If these dates do not match we will return the documentation for amendment.
Please note that it is not fraudulent for the granter to amend their PoA document or for the prescribed person to amend the certificate prior to registration.
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My client can't read English, how do I approach providing a PoA?
We can only accept PoAs drafted in English. You might find the following steps useful if the granter cannot read or speak English.
- Arrange for a PoA in the granter’s own language to be drafted and signed by the granter
- Arrange for an English translation of the PoA and for this to be notarially executed on the basis that the granter does not read English but has accepted and signed the original PoA
- Send both the English translated PoA and the original PoA signed by the granter for registration. Please ensure that the English translated PoA is at the front of all the PoA documentation.
If the PoA document is to be used abroad and it needs to be apostilled i.e. legalised with a wet signature, please note that the documents must be sent to us via the postal system and not via the EPOAR facility.
You can get certain official UK documents ‘legalised’ by asking the Legalisation Office to confirm that the signature, stamp or seal is from a UK public official. You might need to do this if an official in another country has asked you to provide a UK document and they’ve said it must be legalised. For more information please see Get your document legalised - GOV.UK. or contact legalisationenquiries@fco.gsi.gov.uk
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Advance Directive/Living Wills
Advance directives or a living will can be attached to PoA documents if desired. However, our role is to check that PoAs meet the registration criteria of the AWI Act, we are unable to offer any advice on this matter. Nor are we able to comment or make any observations on directives. .
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Wills
Q. Can you help me with enquiries about Wills?
A. No. We cannot help with these types of enquires and we suggest that you contact a legal adviser for advice.
Who to appoint
Q. Can my attorney live in another country other than Scotland?
A. Yes. However bear in mind that your attorney should be reliable and able to carry out tasks on your behalf.
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Prescribed certificate
Q. Who can sign the certificate of capacity?
A. This prescribed certificate is also known as schedule 1. It may be signed by one of the following:
- A practising member of the Faculty of Advocates
- A practising Solicitor who is registered to practice law in Scotland
- A UK registered and licensed medical practitioner
Q. Can a solicitor witnessing or signing a PoA on behalf of the granter also complete the certificate of capacity?
A. Yes, this is perfectly acceptable. Any signatures in the PoA document and the certificate of capacity must be completed by hand i.e. a wet signature and not an electronic/digital signature.
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Q. As a solicitor can I sign the certificate on the basis of having consulted the attorney(s) rather than an individual not involved in the process?
A. Although this would not prevent registration, it is not best practice to sign from such consultation alone as this could be open to challenge in the future as a conflict of interest on behalf of the attorney. In terms of property matters, we are aware that the Keeper of the Registers of Scotland will exclude his indemnity from a purchaser’s title in terms of Section 12(2) of the Land Registration (Scotland) Act 1979 where the seller acts under such a continuing PoA. To avoid an exclusion of indemnity the Keeper will require evidence that the attorney has not acted ‘auctor in rem suam’ (in his own interests) by acting as consultee at part B of the prescribed certificate to the continuing PoA.
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Q. I am a trainee solicitor can I sign the certificate of capacity?
A. The Law Society of Scotland has provided guidance to its members regarding trainee solicitors signing the prescribed certificate under sections 15, 16 and 16a of the Adults with Incapacity (Scotland) Act 2000. The advice is that a trainee should NOT sign the certificate:
“A trainee without a practising certificate could not be a ‘practising solicitor’ and therefore could not sign the certificate. A trainee (with a practising certificate) could be a ‘practising solicitor’ but since these are onerous responsibilities requiring a degree of experience of practice it is considered by the Society that such responsibility should not be placed on a trainee solicitor with a restricted practising certificate and therefore that a trainee should not sign the certificate.”
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Registering your PoA
Q. Can my PoA be registered urgently?
A. If there is genuine urgency we can process the documentation quicker. We provide an
application form which must be used for all requests to expedite the registration of a PoA. Complete the form and email it to
OPG@scotcourts.gov.uk
To request this expedited service via EPOAR:
- Submit the PoA via EPOAR
- Pay the registration fee
- Email your application form to expedite the PoA to opg@scotcourts.gov.uk
Solicitors are advised to email EPOAR expedite requests only when the payment has been made by their cash office. If the above steps are not followed it results in additional work for all concerned.
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Q. Do I need to register my PoA straight away?
A. We would recommend that PoA are registered as promptly as possible. If you choose not to register the document immediately then there is a possibility that between the time of writing and submitting the PoA for registration, there may be changes to the registration requirements or the document may contain an element that prevents registration. If at this time the granter was incapable and their input was required the PoA could not be registered and an alternative, more intrusive and expensive form of intervention may be required to protect the granter's interests.
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Q. I am going on holiday for a period of time and wish to appoint an attorney to look after my affairs in my absence. Do I have to register it with your office?
A. No. If the power is not intended to continue in the event of incapacity then it does not require to be registered with this office.
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Q. Do pre Act PoAs have to be registered?
A. No. There is no provision under the Act for that to be done.
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Q. Does the PoA document need to be formally activated with OPG when I start acting as attorney?
A. No. There is no requirement to notify us 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 our factsheet for attorneys
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Refunding the registration fee
Q. I am a solicitor and my client, the granter of a power of attorney, has died prior to it being registered. Can the registration fee be refunded?
A. Yes. If a power of attorney is withdrawn, for example because the granter has died or changed their mind prior to us carrying out the validity check and processing, we can arrange for the fee to be refunded to the sender.
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Duplicate copies of your certificate and PoA
Q. I have lost my PoA with the certificate of appointment, can I get a copy?
A. Yes. The granter or an attorney can be provided with a duplicate copy and certificate of registration.
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Joint bank accounts
Q. I want to transfer a share of funds from a joint bank account
A. If funds are held in a joint bank account and a share of the funds is to be transferred then both account holders or their representatives e.g. a continuing attorney must give permission to transfer any funds. In summary both account holders or their legal proxies must be in agreement as to how the assets will be separated.
Bankruptcy
Q. What is bankruptcy?
A. Bankruptcy is the process where an individual is declared bankrupt by a Sheriff or the Accountant in Bankruptcy (AiB), because they are unable to pay their debts.
The debtor (person who owes the money) can apply to the AiB to be made bankrupt. A creditor (to whom the money is owed) can apply to the Sheriff to have the debtor declared bankrupt. In Scotland, “sequestration” is another term used for bankruptcy.
A debtor can enter into a voluntary agreement with their creditors to repay some of what they owe. This agreement is called a trust deed. Full details on bankruptcy and protected trust deeds can be found on the AiB website.
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Q. My attorney has been declared bankrupt, what happens then?
A. If your attorney was given continuing powers i.e. could make decisions about your financial affairs or property, the attorney’s appointment will be terminated and the PoA may come to an end. This will depend on how the PoA has been drafted and if there are other attorneys. Your legal or financial adviser will be able to give you more information about this.
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Q. I have granted a PoA and been declared bankrupt, what happens next?
A. The PoA will cease in relation to continuing powers only. Your legal or financial adviser will be able to give you more information about this.
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Deprivation of Liberty
Q. Can a welfare attorney agree to deprive or restrict the granter of their liberty?
Since the ruling in what is known as ‘the Cheshire West case’ and the Scottish Law Commission’s review of and comments on deprivation of liberty there has been much uncertainty as to whether a proxy, particularly a person with welfare power of attorney, can authorise a deprivation or restriction of liberty.
A secondary question which arises is, if so, does the power need to be in be a particular form of words and can the Public Guardian offer wording. We are unable to offer advice on this at this time. These questions were included in the Scottish Government’s consultation on AWI which closed on 30 April 2018.
We are sorry that we cannot offer a definitive position, however the Mental Welfare Commission provides more information on this matter.
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Changing your address
Q. I am a granter/attorney and have moved address, do need to tell you about this?
A. Yes. We provide a form that you can use to tell us about the change of address.
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Using your PoA in Scotland or England
Q. Can a Scottish PoA be used in England?
A. The Mental Capacity Act 2005 (MCA) is the relevant legislation. One needs to draw a distinction between power of attorney and guardianship (called deputyship under the MCA) as the ‘rules’ are quite different. A Scottish PoA can be used in England or Wales if an Organisation (e.g. a bank) accepts its authority, but if they do not things are more problematic. The Organisation may require an endorsement of the Scottish PoA from the English authorities [Court of Protection] but the MCA does not appear to allow for such an endorsement. It is recognised that this is an unacceptable position and perhaps not what was intended. It will require a change to the primary underpinning legislation (the MCA) to rectify this situation. The authorities South of the Border are aware of the problem and have indicated that they will seek to remedy this when there is a legislative opportunity. The Register of international measures provides further information.
If you are now based in England or Wales and are still capable you may wish to consider doing an English/Welsh PoA. If capacity has been lost someone will need to apply to the Court of Protection for deputyship.
If the incapable person is now in England or Wales and you are seeking to rely on a Scottish guardianship order to support them please see the relevant response.
If you need more information about the English system or how best to proceed in England please contact the Office of the Public Guardian for England & Wales, telephone: 0300 456 0300 e-mail: customerservices@publicguardian.gsi.co.uk
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Q. Can a non-Scottish PoA be used in Scotland?
A. A non-Scottish PoA can be used in Scotland if an organisation (e.g. a bank) accepts its authority but if they do not things are more complicated. The organisation may require some form of Scottish endorsement of the PoA but interpretation of the Scottish legislation suggests a non-Scottish PoA is automatically valid in Scotland and consequently there is no arrangement under the law for having it formally endorsed. The law in this area lacks certainty; we are seeking to have this clarified.
As an interim measure, we have devised a certificate which recognises foreign PoAs in Scotland. This certificate can presented along with the PoA to organisations. This may assist in getting a non-Scottish PoA accepted in Scotland.
To request a certificate please email opg@scotcourts.gov.uk along with the following details:
- Granter’s name and current address
- Names of all attorneys and current addresses
- Country the PoA was originally registered with
- Postal address the certificate is to be sent to
Please note that we aim to process these types of requests within ten working days.
If you need more information generally or about how best you might proceed in a given case please contact e-mail opg@scotcourts.gov.uk
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Q. Can a Scottish PoA be used outside the UK?
Each country will have its own position on this. You should first establish what the country’s requirements are. The country may require ‘legalisation’ or ‘Apostillation’ of your power of attorney. This is done via the UK Foreign and Commonwealth office; for more information please see Get your document legalised - GOV.UK. You are likely to require a hand signed copy of your power of attorney (not an electronically signed version). Please telephone us if this is the case, we can arrange for this to be issued to you; 01324 678300. It is likely that the country will require you to have the document translated into their native language and this is likely to be by a nominated official translator of that country.
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Q. Is the OPG part of the 'Tell Us Once' service
A. No. When the granter of a PoA passes away the PoA automatically stops. This means that attorneys no longer can act. Attorneys must inform any relevant authorities that the PoA is no longer active.
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