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Pensions and retirement planning
Managing your affairs and power of attorney (Scotland)
If you live in Scotland, find out how you can appoint a friend, relative or professional to hold a power of attorney which will start in the event of your incapacity. Powers of attorney can be given in relation to your financial affairs or your personal welfare or in relation to both areas.
What is a Power of Attorney (PoA) - Scotland
Power of attorney (PoA) is a legal document giving someone else the authority to take actions or make decisions on your behalf. You can have this document drawn up at any time when you have capacity (are still mentally capable). In the document you will be called the grantor, and your affairs will be looked after by your attorney(s).
You can create two types of PoA:
- Continuing PoA
- Welfare PoA
Continuing PoA
A Continuing PoA allows you to choose someone to make decisions to do with money or property. This power can either begin immediately or at a later date, for example, if you lose capacity to make decisions for yourself.
Welfare PoA
A Welfare PoA allows you to choose someone to make decisions about your health or personal welfare or both. This power can begin if you lose capacity to make these decisions for yourself.
A local solicitor should be able to assist you to draw up a PoA. The PoA must include a certificate signed by a solicitor holding a practicing certificate. Or the PoA should contain a certificate signed by a registered medical practitioner stating that you are capable of understanding the PoA and that you were not put under any undue pressure to make it.
You may wish to make a combined power of attorney which is known as Continuing and Welfare PoA.
You can find out more information about this at the Office of the Public Guardian (Scotland) (OPG).
Who should you appoint?
When appointing a PoA you should consider:
- how well you can trust the person
- how well you know the person
- how well the person looks after their financial affairs
- how happy they will be to do the role
It may be a good idea to appoint more than one person to help prevent abuse of the responsibility.
When choosing a person you can appoint someone to deal with financial matters and someone different to deal with personal welfare. Alternatively you could give your attorneys powers over your financial affairs and your welfare matters. You can also consider appointing a relative, friend or a professional person such as a solicitor or accountant, or a combination.
Someone who is currently declared bankrupt cannot be appointed as an attorney with powers over your finances and property. They can be appointed as a welfare attorney.
Registering a Power of attorney
If the PoA has been drafted under the terms of the Adults with Incapacity (Scotland) 2000 Act, you must register it with the OPG before it can be used. It doesn't matter if you are still capable of doing things for yourself, the PoA must be registered before it will be valid.
The OPG have a registration form which should be completed.
Cancelling Powers of Attorney
If your PoA is not able to act for you then a new PoA will need to be drawn up. You (the granter) can only do this if you have capacity to do so. Having more than one attorney named with power over finances and welfare is a good idea to avoid this situation.
To cancel your PoA (after it is registered) you need to provide notice in writing to the OPG – this is known as 'revocation'.
From 1 April 2008, a certificate completed by a registered medical practitioner, practicing solicitor or legal advocate must be attached to the letter of revocation.
Power of Attorneys drawn up before 2 April 2001
A PoA drawn up before 2 April 2001 will not lapse if you become incapable of managing your own affairs, unless the deed states this.
PoAs drawn up on or after 2 April 2001 (unless they are a continuing PoA) will lapse if you become incapable. You may wish to seek legal opinion on these types of PoAs.
What happens if you have become incapacitated?
If you become incapacitated a person with an interest in your affairs may apply to legally act on your behalf via the Sheriff Court – this person is called a Guardian. A Guardian is usually appointed for a period of three years or more. There are two types of Guardian who can do so - a Financial Guardian and a Welfare Guardian:
- a Financial Guardian will help deal with your financial affairs
- a Welfare Guardian will deal with other matters concerning welfare and healthcare
If you become incapacitated and a person needs to act on your behalf to carry out a one-off action (for example, selling a house), an Intervention Order will need to be applied for. This order gives a person legal authority to carry out a one-off action and can be applied for at the Sheriff Court.
If an individual or organisation needs to access your funds, they could do so by applying to the Access to Funds scheme. The ATF2 application form needs to be completed and sent to the OPG.
If there are no court appointments, then for Social Security purposes only, the Department for Work and Pensions can appoint a person or organisation to act for you – this person is known as an Appointee.
