How Do I Set Up a Power of Attorney in Scotland?

Who this guide is for

People in Scotland who want to set up a power of attorney, attorneys, and people worried about an adult who can no longer make their own decisions.

What this guide does not cover

• England, Wales or Northern Ireland: see the England and Wales guide or the Northern Ireland guide.
• Wills, inheritance and what happens when someone dies: this guide does not cover them. Ask a solicitor or Citizens Advice Scotland.
• How to apply for a guardianship or intervention order, the court process and its costs: this guide names the route only. Ask a solicitor or the Office of the Public Guardian (Scotland).
• The Office of the Public Guardian (Scotland) registration fee, fee exemptions and how long registration takes: ask the Office of the Public Guardian (Scotland).
• Care needs assessments and paying for care: see our social care guide.

What the rules depend on

1. Where does the person live? Scotland: this guide. England, Wales and Northern Ireland have their own guides.
2. Can the person still understand what granting a power of attorney means? Yes: they can set one up now. No: it is too late, and someone may need a guardianship or intervention order.
3. Which decisions? Money and property: a continuing power of attorney. Welfare, such as care and where the person lives: a welfare power of attorney.
4. Is a power of attorney already registered? Yes: the attorney acts under it, within the powers it gives. No: see "If there is no power of attorney".

The two types

• Continuing power of attorney: covers your financial and property affairs. It can be used as soon as it is registered and carries on if you lose capacity. You can choose for it to start only if you become unable to make decisions, and set out how your incapacity is to be assessed.
• Welfare power of attorney: lets the person you appoint make welfare decisions for you. A welfare attorney cannot use these powers until you have lost the capacity to make those decisions yourself.

Setting one up

• You can draw up the document yourself, but most people use a solicitor. If you do it yourself, follow the code of practice for continuing and welfare attorneys so the document gives the powers your attorneys may need.
• A solicitor or a medical practitioner must interview you before you sign and certify the document. This is to make sure you know what you are doing and are not under undue influence.
• An attorney must be over 16 and must sign to confirm they are willing to act.
• Someone who is bankrupt (their estate has been sequestrated or a protected trust deed has been granted) cannot be a continuing attorney. Bankruptcy does not affect a welfare appointment.
• Legal aid (advice and assistance) may help with a solicitor's costs if you qualify: the Scottish Legal Aid Board has the details.

Registering

• Send the power of attorney document, the certificate, a registration form signed by the attorneys and the registration fee to the Office of the Public Guardian (Scotland).
• The Office of the Public Guardian (Scotland) charges a registration fee. Some people are exempt: check the current fee with them.

If there is no power of attorney

• Nobody, including a husband, wife or next of kin, has an automatic right to make decisions for an adult who can no longer make them.
• Someone might have to go to court for a guardianship order or an intervention order before they can act for the adult.

Worried about an attorney

• The Office of the Public Guardian (Scotland) investigates concerns where the money or property of an adult with incapacity (aged 16 or over) seems to be at risk, including how someone with powers over their finances is using them.
• It does not investigate welfare concerns, concerns about an adult who still has capacity, or disputes between joint attorneys, and it cannot recover money already lost, so report concerns early.
• It does not tell the person complained about who raised the concern.
• If the adult's personal welfare is at risk, contact the social work department of the council where the adult lives, or the Mental Welfare Commission for Scotland.

Deadlines

This guide gives no deadlines. For how long registration takes, ask the Office of the Public Guardian (Scotland).

Traps

• Lasting power of attorney and deputy are England and Wales terms. In Scotland you grant a continuing or welfare power of attorney, and the court route is guardianship.
• A welfare power of attorney cannot be used while the adult can still make the decision themselves.
• An unregistered power of attorney that is meant to work if you lose capacity cannot take effect.
• Waiting until capacity is lost means the power of attorney route is closed.