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Power of Attorney

What is a power of attorney?

A power of attorney (PoA) is a written document giving someone else authority to take actions or make decisions on your behalf. This could be to deal with your financial affairs and / or welfare matters. It could be used in the future if you become incapable.

The PoA details the names of the people, known as attorneys, who you want to help you, and lists the individual powers that you want them to have. The PoA will also state when your attorneys can begin acting.

Who can make a PoA?

Anyone over the age of 16 can make a PoA, but there are restrictions if you have been made bankrupt.

What does incapable mean?

Your capacity could be impaired gradually or suddenly as a result of an accident or illness.  A registered and licensed medical doctor will be able to say whether you are incapable or not.

What would happen if I don’t have a PoA?

No one has an automatic right to take actions on your behalf without legal authority. If you are unable to make decisions about your affairs, your family or friends may have to go to court to get the authority to act on your behalf.

Is a PoA not for older people?

No, nobody likes to think that they may not be able to look after themself but accidents or illness can happen to anyone.

Is a PoA not for people with lots of money?

No, it is not just about looking after money/property it can also let you plan who should decide personal welfare issues for you.

Who can I appoint as my attorney?

You can appoint anyone you want, over the age of 16. This could be a family member or a friend, a solicitor or accountant, or a combination.  It’s usually a good idea to have more than one attorney or maybe what is called a substitute attorney to step in if your attorney can no longer do things for you.

You can appoint someone to deal with your financial matters and someone different to deal with your personal welfare.

It is good practice to discuss with the person you want to be your attorney what being an attorney actually involves. It will be helpful if you keep a note of the matters discussed and give your prospective attorney a copy too. Although, it’s your choice who to appoint, you cannot appoint someone who is currently declared as bankrupt to deal with your financial and property affairs.

How or where would I get one?

Any local solicitor should be able to assist you to draft a PoA and provide legal advice on the matter. Alternatively, some companies and stationery shops sell PoA packs. Useful information is also available from our website.

How much does it cost?

A professional may charge you to draw up a PoA and prices vary.  The PoA should include a certificate signed by a practising solicitor or medical doctor. The certificate is needed to confirm that you are capable of understanding the PoA. You might be charged a fee for this service.

There is also a registration fee payable to the Office of the Public Guardian.  .

What happens to my PoA?

The PoA must be registered with the Office of the Public Guardian before it can be used, even if you are still capable of doing things for yourself.

The following documents need to be sent to us to register your PoA:

your signed PoA, including the fully completed certificate;

confirmation that your attorney/s are freely willing to act on your behalf; and

registration fee.

You can send your documents to us by post or submit your PoA electronically using the electronic PoA registration (EPOAR) facility. Step-by-step guidance is available on our website.

Once the PoA is registered, your documentation and an authentic copy of the PoA along with a certificate will be returned to the sender. We also send you a copy of the registered PoA for your records.

Can my attorney use my PoA before I become incapable?

Yes, they can help you with your finances if you want them to do so but they cannot make decisions about your welfare until you are no longer able to make those decisions for yourself.

Duty to keep records

Attorneys acting on your behalf have a duty to keep records of their actions.  This means that continuing attorneys i.e. attorneys with financial related powers should keep an ongoing financial accounting in relation to your property and financial matters.  Welfare attorneys should keep records relating to your welfare issues.  Guidance is provided in the Code of Practice.

Can I cancel the PoA once it is registered?

You can cancel your PoA or any of the powers granted in it once it has been registered with us. Information is available from our website explaining how to do this.

We have a list of solicitors to support you to with Power of Attorney – contact us for further information.

Click on the link below for further details from the Office of the Public Guardian.

http://www.publicguardian-scotland.gov.uk/power-of-attorney