Power of attorney
The two kinds, how to set one up and who to choose.
A power of attorney lets someone you trust make decisions for you if you can’t make them yourself.
About
A power of attorney is a legal document that lets you (the ‘granter’) appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf. This gives you more control over what happens to you if you have an accident or an illness and cannot make your own decisions. If you do not have one in place, doctors will make decisions about your treatment for you. In Scotland, those decisions must follow the principles of the Adults with Incapacity (Scotland) Act: they must benefit you, take account of your past and present wishes (including any advance directive), and take account of the views of the people close to you. Your family cannot make medical decisions for you unless you have appointed them. If you do want to appoint somebody, you can choose exactly what powers you want to grant. This can be for financial and property matters (a continuing power of attorney), your personal health and welfare (a welfare power of attorney), or both.
You must have capacity to grant a power of attorney: you need to understand what it means and what you are signing. Being physically ill does not in itself stop you making one.
Resources
You do not have to use a solicitor to write it, although if your circumstances are complicated, it is recommended that you do. A solicitor or doctor must sign a certificate confirming that you understand what you are granting and are not under undue influence. The power of attorney must then be registered with the Office of the Public Guardian (Scotland) before it can be used. The Public Guardian’s website has guidance on what a power of attorney must contain, the certificate forms and how to register; its online registration service registers a power of attorney but does not draft one for you. mygov.scot explains how to set one up.
Registration can take many months, so start early. The Public Guardian publishes its current processing dates on its website, and can sometimes deal with urgent cases sooner. For help, call the Office of the Public Guardian on 01324 678300 (option 1 for powers of attorney).
The system in England and Wales is different, with its own forms (a ‘lasting power of attorney’) and its own Office of the Public Guardian. If you live there, see GOV.UK.
If you lose capacity and haven’t previously granted a power of attorney, it may be necessary for someone close to you to apply to the sheriff court for an intervention order or guardianship order, so they can deal with your affairs on your behalf. This can be a lengthy process, so it is much better to grant a power of attorney in advance if you can.
Friends at the End offers information and support on powers of attorney, so please get in touch if you need more information.
The two kinds
You can set up both in one document. You can name the same person for each, or different people.
Your health, care and where you live
- Agreeing to or refusing medical treatment
- Where you live, and the care you receive
- Who you see, and day-to-day decisions
It can only be used once you’re unable to make these decisions yourself.
Your money and property
- Paying bills and managing bank accounts
- Dealing with benefits and pensions
- Buying or selling your home
You choose whether it starts straight away or only if you lose capacity.
Everything, in one document
- One form, one certificate, one registration
- The same person, or different people for each part
- Covers your welfare and your money together
How to set one up
-
A conversation
Choose your attorney
Someone you trust to follow your wishes. You can name more than one, and a substitute.
-
Write the document
A solicitor can draft it, or you can write it yourself. The Public Guardian’s guidance explains what it must include.
-
One appointment
Get it certified
A solicitor or doctor confirms you understand it and aren’t under pressure.
-
Often many months
Register it
Send it to the Office of the Public Guardian. It can’t be used until it’s registered. Its website shows how long registration is taking.
-
A few phone calls
Tell people
Give copies to your attorney and your GP, and tell your family where it’s kept.
Choosing your attorney
Tick off what’s true of the person you have in mind.
Questions people ask
- When should I set one up?
Whenever suits you, as long as you can make the decision yourself. You may want to set one up at the same time as a will. Without one, your family may need to apply to a court, which takes longer.
- Can my attorney decide anything they like?
No. They must act in your interests and take your past wishes into account, including any advance directive.
- Is there a fee?
Usually. The Public Guardian charges a fee to register it, though some people on certain benefits don’t have to pay. A solicitor will charge for their time.
- Can I change it later?
Yes, as long as you still have capacity. You can change your attorney or cancel it altogether.
Our planning guide
The guide is online and takes you through each step. It is free to anyone in Scotland.
- Emailinfo@fate.scot
- Office0131 271 5971Our office line, not a helpline.
- PostFriends at the End, 42 Charlotte Square, Edinburgh EH2 4HQ