The PoA document
We do not provide power of attorney (PoA) template documents as our role is to provide a registration service and general PoA advice.
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.
When we receive your PoA we carry out a check to make sure it meets the registration criteria. If your document does not comply then we will be unable to register it. We will then write to the sender advising of the reason why it can’t be registered. See common reasons for rejections to help avoid your PoA being returned to you for amendment.
What does it look like?
The drafting of your PoA is important as the wording of the document will be open to interpretation. A legal adviser will be able to provide advice if further information is required or your circumstances are complex.
We have provided a typical example to help you recognise what the actual PoA document could look like. If you intend using this to form the basis of your own PoA, you will need to think about and add in the specific powers you wish your attorney to have.
Chapter 2, sections 2.16 and 2.19 of the Code of Practice issued by the Scottish Government list possible powers that could be considered. In addition, you can include other powers that your attorney may need to suit your circumstances. Remember the PoA is legally binding once it is registered with us. Make sure you understand the detail in the PoA.
Understanding your PoA section by section
We have broken down a PoA into sections so that you can see how it might be constructed. This may help you to understand the type of information needed in each section. We highly recommend that you read each of the sections as they contain important information which you might want to think about. We are happy to provide general advice, however we cannot provide legal advice.
- Appointment
- General powers
- What powers to give
- Validity statement
- Recalling/withdrawing the PoA
- Testing clause
- Certificate of capacity
Appointment
This section usually includes the information below:
- Your name and address along with the names and addresses of the attorneys you wish to appoint.
- You can appoint a sole attorney or joint attorneys, substitute attorneys or a combination of these. It's your choice.
- You chose whom you wish to appoint, however it is important to give careful consideration and appoint people that you trust. Giving the PoA to another person may have implications further down the line, so it's important that you understand the consequences of giving this power to another person.
- If more than one attorney is appointed additional information should be added here to state how the attorneys are to act. For example you may wish to think about whether your attorneys are to make decisions together, separately or together and separately. Your legal adviser will be able to provide advice to you on this matter.
- If you wish to appoint a substitute attorney, you should state when they are to begin acting, for example this could be if one of the main attorneys resigns, loses capacity or passes away.
- You may wish to include some information / direction for your attorneys to follow should any disagreement arise between them at a future date.
- You must clearly state in the PoA document the type of appointment you are granting.
- Your attorneys need to confirm to us that they are freely willing to take on the role of attorney.
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General powers
This section usually contains the following details:
- In addition to the specific powers you wish to give to your attorney, this section allows for general powers to be given. A general power could be seen as being a catch-all and could possibly be used by the attorney if a specific power had not been granted or has been missed out from the PoA document.
- The information in this section usually allows the attorney to act as you would have done when making your own decisions about your affairs.
- Information will need to be added to specify when your attorney is to begin acting. If you have given continuing i.e. financial powers your continuing attorney could begin acting as soon as your PoA is registered with the Public Guardian or perhaps you want your attorneys to begin acting on your behalf at a later date. You will need to think about this, and make sure that your intention is clearly written into the PoA document.
- If your attorney is to begin acting at a later date, such as, in the event of incapacity, then the PoA document must include a statement confirming that you have considered how your incapacity is to be determined. You may also like to go one step further and include details to outline who should make this decision, and whether any evidence is to be made available to support this.
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What powers to give
This section should detail all of the individual powers you wish to give your attorneys. When thinking about which powers (continuing, welfare or a combination) to give, you should think about the short term and longer term to ensure your attorneys have sufficient powers to make decisions on your behalf.
You should tailor your own PoA to suit your own needs and circumstances. Further information can be found in pages 17 -20 of the Code of Practice provided by the Scottish Government.
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Validity statement
The validity section confirms that the decisions made and documents granted by the attorney are valid and binding, just as they would be if you had made the decision or signed a document yourself.
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Recalling/withdrawing the PoA
This section stipulates that the PoA will remain in place until you recall/withdraw it in writing or until your death.
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Testing clause
This section is where you sign your name and enter the date of signature. The testing clause should not sit on a page on its own, and the information must follow on from that in the previous section of the document. See our typical example for more information. You should note:
- You must sign and date the PoA immediately after you have been interviewed by either a solicitor who is registered to practise law in Scotland or by a registered UK medical doctor who holds a licence to practise.
- Your signature may be witnessed, and the name of the witness, along with the place where the PoA document was signed, and the date of signature can be stated here.
Once you have signed and dated the PoA the document will become legally binding. It must be registered to make it valid.
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Certificate of capacity
The certificate of capacity forms part of the PoA document. This certificate can only be completed by either a solicitor who is registered to practice law in Scotland or by a UK registered and licenced medical doctor (known as prescribed persons).
- Before you sign and date the PoA document, a solicitor who is registered to practice law in Scotland or by a practising member of the Faculty of Advocates or a UK medical doctor must interview you to ensure that you understand what you are doing by granting PoA. If the solicitor or medical doctor is satisfied that you understand they will sign the certificate of capacity (known as schedule1). This certificate will now form part of your PoA document.
- Prior to approaching your doctor you might want to check their willingness to undertake the necessary interview assessment and certification step.
- Please note we are unable to provide legal advice and recommend that you speak to a solicitor.
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