What is a Power of Attorney?
A Power of Attorney (or POA) is a document which allows you to give another person permission to act on your behalf.
You can give permission to deal with your finances and property and your health and welfare, or both. You can choose the same or different people to deal with your finances and health and welfare. If you make a Power of Attorney, you are known as the “granter” and the person you appoint is your “attorney”.
In your Power of Attorney you say who is to be your attorney, when your attorney can make decisions for you, and what they can do for you. You also choose when you would like it to start. Therefore, a Power of Attorney gives you complete control.
A Power of Attorney lets you choose who you would like to help you in the future. That is of course if you ever need help.
Above all your chosen attorney cannot take control from you.
Types of Power of Attorney
Frequently Asked Questions
Who can make a Power of Attorney ?
Anyone over the age of 16 can make a Power of Attorney in Scotland. In fact we recommend that everyone makes a Power of Attorney.
There are two limitations on who can make a Power of Attorney.
Firstly, you must have capacity to make a Power of Attorney. That is you must understand what a Power of Attorney is and the consequences of making one. One of the protections of the law in Scotland is that a solicitor, advocate (Scottish barrister) or doctor must sign a certificate to say that you understand the Power of Attorney when you sign it. This means that we have more protection in Scotland than in other countries.
Secondly, if you are currently bankrupt you cannot grant a Continuing Power of Attorney in relation to your finances. This is because the law says that an attorneys authority ends on bankruptcy. You can still make a Welfare Power of Attorney to appoint someone to assist with your health and welfare. You can also make a Continuing Power of Attorney when your bankruptcy is discharged.
Can I take out a Power of Attorney for my relative ?
No, you cannot “take out” a Power of Attorney for another person. A Power of Attorney can only be given to you by your relative. Whilst you may want to assist, you cannot force another person to let you help, that is one of the protections of the law.
You can assist another person to prepare a Power of Attorney at POA Scotland. However, you must have that person’s consent and only assist if you have been asked to. You must also follow that person’s instructions in making the Power of Attorney.
When a Power of Attorney is prepared, it must be signed in front of a solicitor, advocate (Scottish barrister) or doctor who must sign a certificate to confirm that the person making the Power of Attorney understands the document. Therefore, if your relative does not know you are preparing a Power of Attorney or they do not agree to it, they are unlikely to sign the document when they meet with a solicitor, advocate or doctor.
Why do I need a Power of Attorney ?
Many people think that a family member, such as a husband or wife, can step in if they need help. Unfortunately that is not true. The law in Scotland says that no one can make decisions for another person over 16 without written authority.
In other words your family cannot go to the bank (to put money in or take money out) or pay your bills without written authority. Likewise they cannot speak to doctors or other people on your behalf without written legal authority. The consequence of this can be problems and a lot of stress for you and your family if you ever need help in the future.
The only way you can give another person legal authority to help you now or in the future is by making a Power of Attorney.
Do you need a lawyer to make a Power of Attorney ?
No, you don’t need a lawyer to make a Power of Attorney.
In Scotland many people live a long way from a lawyer which could stop them making a Power of Attorney. That’s one of the reasons we set up POA Scotland.
However, the law says you do need a lawyer or a doctor to confirm you have capacity to make the Power of Attorney. As a result you will have to make an appointment with a lawyer or a doctor to sign your Power of Attorney.
After you have signed the Power of Attorney, the lawyer or doctor must sign a Certificate to say you have capacity. This is called a Certificate of Capacity or Schedule 1 Certificate. Don’t worry, we will send this Certificate to you along with your Power of Attorney.
How much does it cost to make a Power of Attorney ?
Every Power of Attorney made with POA Scotland costs £90. Our mission is to make Power of Attorney available to everyone in Scotland. Therefore we use technology to keep the costs as low as possible.
Solicitors have high costs to run offices and pay staff. So, you can expect to pay around £300 + VAT to make a Power of Attorney with a solicitor. However, if you want detailed personal advice, we recommend you speak to a solicitor in person.
Can someone with dementia make a Power of Attorney ?
Someone with dementia can make a Power of Attorney. Just because you or a relative may have received a diagnosis, you can still make a Power of Attorney. But the person will need to understand the Power of Attorney.
Understanding the Power of Attorney can sometimes cause problems. The main thing the person needs to understand is that they are giving permission to another person to make decisions for them. That could be straight away or in the future.
What happens if I don't make a Power of Attorney ?
If you don’t make a Power of Attorney and you need help in the future no one will be able deal with your finances or make medical or other decisions for you.
The consequence of this is that no one (not even your husband, wife or partner or your children) can pay your bills, sell your house or give up your tenancy. In addition no one can make decisions about your medical treatment and care. Most importantly it can even mean that you are stuck in hospital even if you are fit to go home.
If you don’t make a Power of Attorney and you lose capacity, your family will have to apply to the court to become your guardian. That is a difficult process which can take over to a year and cost over £5,000.
Above all if your family don’t apply, the local authority must apply to appoint a guardian for you. As a result someone you don’t know will be making decisions for you.
It is much simpler and more affordable to make a Power of Attorney.
I have a Will, why do I need a Power of Attorney ?
That’s great news you have a Will. Most people in Scotland do not have a Will, so you are already planning ahead.
The difference between your Will and a Power of Attorney is very straighforward. Your Will only applies after your death whereas your Power of Attorney only applies while you are alive.
In your Will the person you appoint is known as your executor. Your executor can only deal with your finances after your death.
Your Power of Attorney is a completely different document to your Will. In your Power of Attorney the person you appoint is known as your attorney. Your attorney can deal with both your finances and your care and welfare while you are alive.
Don’t worry if you want to choose the same person. Your executor can also be your attorney.
If I make a Power of Attorney will I lose control of my affairs ?
Firstly, the law says that your attorney must allow you to make all decisions you can make. Secondly, it says they must support you to make decisions if you need help.
By making a Power of Attorney you are in complete control. You choose who should help you (if you ever need help) and what they can do for you. So, if you decide your attorney is not the right person, you can stop the Power of Attorney.
In addition you are in control of when your attorney can help you. Our specially designed questionnaire allows you choose when your Power of Attorney comes into effect. Consequently you can choose if it comes into effect straight away or only if you cannot make decisions.
What does capacity to make a Power of Attorney mean ?
The law which allows you to make a Power of Attorney in Scotland says what capacity means.
The law says you have capacity if you are capable of acting, making decisions, communicating decisions, understanding decisions or remembering decisions.
When you make your Power of Attorney, the law says that a doctor or solicitor must confirm you have capacity to understand it. In addition the doctor or solicitor must sign a Certificate of Capacity to confirm this. Don’t worry we send you the Certificate of Capacity along with your Power of Attorney.
Therefore, when you have made your Power of Attorney, you must see your doctor or a solicitor to sign your Power of Attorney.
I have made a Power of Attorney abroad, can I use it in Scotland ?
If your Power of Attorney is not in English, it is likely you will need a translation. It is also likely that the translator will need to be registered with the Foreign & Commonwealth Office of the UK. You can find out more information here.
What if I change my mind and want to remove my attorney ?
You can change your mind at any time.
All of our circumstances change over time. For example, family move away or pass away. Therefore your Power of Attorney can become out of date. The good news is that you can change your Power of Attorney at any time.
You can revoke the appointment of one or more of your attorneys, appoint new attorneys or change attorneys at any time. In addition you can revoke the entire Power of Attorney and start again afresh.
Who makes sure my attorney does the right thing ?
Your Power of Attorney is a very powerful document. Therefore, you must choose carefully who you appoint to be your attorney.
Above all your attorney should be someone you trust entirely and will make the decisions you would make. Don’t choose an attorney just because s/he is the oldest child or you are afraid that they will feel rejected. It is very responsible position and your attorney must have the skills to fulfil that role.
However, even if you choose your attorney carefully they may need help or guidance in the future.
The body responsible for supervising financial (continuing) attorneys is The Office of the Public Guardian. The Office of the Public Guardian have power to investigate attorneys, have an attorney removed and report a matter to the police.
The local authority is responsible for supervising welfare attorneys and can instigate an investigation or report a matter to the Mental Welfare Commission for Scotland.
What is the difference between Power of Attorney and Guardianship ?
The difference between a Power of Attorney and a Guardianship is how much a person understands and remembers decisions.
A Power of Attorney can only be made by a person who understands what it is and can remember what they are doing. Therefore, a Power of Attorney allows you to choose who is to help you in the future.
On the other hand, a Guardianship can only be granted when a person does not understand what a Power of Attorney is or is unable to remember decision. That could be because of a lifelong condition such as a learning disability, a sudden condition such as a head injury or stroke, or a degenerative condition such as dementia.
Most people can avoid the need for a Guardianship by making a Power of Attorney. You can make your Power of Attorney today. Just go to our questionnaire and answer some straightforward questions. Your Power of Attorney will be ready to print and sign in around 15 minutes. It will save you and your family a lot of time and expense.
What is a Guardianship ?
A Guardianship is a court order authorising you to make decisions on behalf of another person who is no longer able to make decisions. To obtain a Guardianship you have to make an application to the Sheriff Court local to the person for whom you are making the application, not you.
When you make the application, you have to prove the person is no longer capable of making decision. As a result you must obtain reports from a doctor and a psychiatrist confirming this. You will also have to prove you are suitable to be a guardian. To confirm you are suitable you must obtain reports from a Mental Health Officer (a specially trained social worker) or a solicitor depending on what type of Guardianship it is.
This all takes a long time and is distressing for everyone. A Guardianship currently takes around a year to complete. If you have a solicitor you will not have to go to court. However, as the court does not know you or your loved one, the reports are important for the Sheriff to decide. These can feel very intrusive, especially in a close family. Remember though, the rules are there for everyone and must be impartial.
A Guardianship will normally only be granted for three years or in exceptional circumstances for five years. Therefore, you will have to return to court after that time to renew the Guardianship.
How much does a Guardianship cost and how do I get one ?
The cost of a Guardianship can vary widely depending on various factors.
Firstly, the cost will be much higher if there is any disagreement. This can add thousands, if not tens of thousands, of pounds to the cost. Therefore, before you think of applying to be a guardian make sure everyone agrees.
Secondly, the cost may be higher if the person for whom the application is being made is not clearly incapable. If the person can understand, they can instruct a solicitor to oppose your application. Again, this may add thousands of pounds to the cost. Therefore, make sure the doctors think a Guardianship is needed before you start an application.
Thirdly, solicitors may charge different fees so always ask before you start.
A straightforward Guardianship application is likely to cost around £5,000 +VAT. In addition doctors’ reports and court fees will add around £2,000.
Legal Aid is available for a Guardianship. However, unless you are applying for welfare powers this will be means tested. In addition not all solicitors offer Legal Aid, so check in advance.
If you need a guardianship and would like us to put you in touch with a solicitor who offers Legal Aid, please contact us.