Power of Attorney
What is a power of attorney?
A power of attorney is an authority given by an individual (known as the Granter) to another person(s) (known as the Attorney/s) to deal with aspects of the Granter's affairs. This could relate to financial/property matters and/ or personal welfare.
Powers relating to the Granter's financial /property affairs are known as "continuing powers" and may be given with the intention of taking effect immediately and continuing upon the Granter's incapacity or beginning on the incapacity of the Granter. Welfare powers cannot be exercised until such time as the Granter has lost the capacity to make these decisions. Granters have scope to grant whatever powers they choose, however as these powers will be strictly interpreted; the Granter should ensure that the powers granted are specific and cover all the relevant aspects of their affairs. A power of attorney document should contain either continuing powers, welfare powers or a combination of both.
When a continuing power of attorney is to begin only in the event of incapacity or if welfare powers are conferred, the document must include a statement confirming that the Granter has considered how their incapacity is to be determined. It is suggested as good practice for the Granter to also consider stating in the document how incapacity is to be determined or highlighting who should determine when the Granter has lost capacity.
Who can I appoint as my attorney(s)?
The attorney(s) should be someone you trust. You can appoint who you want, this could be a relative, a friend or a professional person such as a solicitor or accountant or a combination. You can appoint someone to deal with financial matters and someone different to deal with personal welfare.
Who cannot act as an attorney?
Someone who is currently declared as bankrupt cannot be appointed or act as a continuing attorney. For the purposes of this Act, a person is bankrupt if their estate has been sequestrated for insolvency or a protected trust deed has been granted. Please contact the OPG if you require further information on this.
How do I create a power of attorney?
You will need a written document, a certificate of capacity and a registration form;
- The written document
- The certificate of capacity
In order to create a power of attorney a written document is needed which sets out the precise powers that the Granter wishes the Attorney to have. The document must be signed by the Granter. It must also state clearly that the powers are continuing, welfare or a combination of both. Click here to view the sample power of attorneys on our website for further information.
As the power of attorney gives authority to another person to act on your behalf it may be in your best interest to seek professional/legal advice when completing your power of attorney document.
The document must also include a statutory certificate signed by a solicitor registered to practice in Scotland, a practising member of the Scottish Faculty of Advocates or a registered and licensed medical practitioner which confirms that:
- they have interviewed the Granter immediately before he/she signed the power of attorney document;
- they are satisfied either through their own knowledge or by consulting another person that the Granter fully understands what he/she is doing and the nature and extent of the powers he/she is giving;
- they have no reason to believe that the Granter is acting under any undue influence
Click here to view the certificate. This is a single certificate and can be used when the following powers are conferred:
- a welfare power of attorney
- a continuing power of attorney
- a welfare and continuing power of attorney
To speed up the application process, it is recommended that the Public Guardian's registration form be completed. This can be obtained directly from the Office of the Public Guardian (OPG) or click here to download it. It is not necessary to send all pages of the registration form, please only send the completed pages.
The registration form, power of attorney document and the certificate should be submitted along with the fee (currently £70.00) to the OPG. Cheques should be made payable to "The Scottish Court Service".
Is there a checklist?
Click here to view the Registration Checklist to ensure that all of the documents are included and have been fully completed.
Help us to help you
The OPG is a 'paperless office' that means that all correspondence sent to the office is scanned and held electronically. In order to speed up the scanning process it would help us if the following points were observed when sending in Powers of Attorney:
- Please do not attach staples to any of the papers you send us
- Please do not send us double sided registration forms or Power Of Attorney documents
- Please provide us with covering letters
- Please ensure covering letters are A4 size if possible
- Please do not bind the pages of the Power of Attorney together
- Please do not place registration forms or Powers of Attorney in plastic wallets
- There is no need for corner covers
- Only send the completed pages of the registration form
What are the Public Guardian's responsibilities?
All continuing and welfare powers of attorney must be registered with the OPG who will maintain a Public Register. The Public Guardian also has a statutory obligation to notify the appropriate local authority and Mental Welfare Commission of any welfare powers of attorney which have been registered.
Once a power of attorney has been registered with this office, the Public Guardian will return the signed power of attorney and issue a Certificate of Registration to the sender. The Certificate can then be used by the Attorney immediately in the case of a continuing power of attorney if this is the Granter's wish, or it can be kept safe until such times as the Granter has lost capacity or wishes the Attorney to act on his/her behalf. A welfare Attorney however cannot exercise any of the welfare powers granted until the Granter has lost capacity.
Can the power of attorney be revoked?
The Granter can revoke a continuing or welfare power of attorney or any of the powers granted in it once it has been registered with the Public Guardian. The granter must give notice of the revocation in writing.
If a Granter wishes to revoke either some of the powers or all of the powers in the power of attorney, a certificate completed by the prescribed person (registered and licensed medical practitioner or a practising solicitor or a legal advocate) must be attached to the letter informing of the revocation. The date when the granter subscribes the revocation notice must be the same day he/she is interviewed by the prescribed person. For further guidance please click here. Click here to view the prescribed certificate.
It is highly recommended that the code of practice for continuing and welfare attorneys is read in conjunction with the above. This can be viewed and downloaded from the Scottish Government website by clicking here.