Until the law was changed in 2000 with the enactment of the Adults with Incapacity (Scotland) Act 2000, the law in Scotland relating to powers of attorney was not entirely satisfactory.
Until 2000, powers of attorney lapsed when an individual who had granted power of attorney lost their mental capacity. This meant that the power often lapsed just as it was needed most.
This Act of the Scottish Parliament introduced the concept of Continuing power of attorney (basically a Power of Attorney which enables the attorney to deal with the financial and property affairs of the granter even if the granter then became incapable), and the entirely new concept of the Welfare power of attorney.
This new type of power of attorney enables the attorney to deal with various aspects of the health and welfare of the granter once the latter has lost mental capacity.
If a power of attorney was granted post 2001, certain principles apply to it:
- The power can only be used for the granter’s benefit, and that the benefit sought cannot be achieved by other means
- This intervention must be the option which is 'least restrictive' to the granter's freedom
- The wishes of the granter should be respected so far as is possible, as should the views of the nearest relative and the adult's primary carer
- The person to whom the power is granted is under an obligation to encourage the granter to use and develop their skill in managing their own affairs as far as is possible
- Failure to adhere to these policies may result in an investigation by a number of interested authorities
Types of power of attorney
There are three main types of power of attorney in Scotland:
- Simple power of attorney
- Continuing power of attorney
- Welfare power of attorney
Simple power of attorney
This is the most basic and is used in situations in which a person is temporarily unable to manage their own affairs, for instance because they are abroad. This power allows the person to whom it is granted to manage routine financial affairs on behalf of the granter and it might be limited to a few specific powers. For instance, if you are in the process of buying or selling a property, but are out of the country during this time, you could grant a simple power of attorney to enable someone in Scotland to deal with the transaction for you. This type of power of attorney would end in the event that the granter loses their mental capacity.
Continuing power of attorney
Continuing power of attorney allows the person to whom the power is granted deal with the granter's property and financial affairs and it continues in force if the granter loses their mental capacity
A Continuing power of attorney is only valid if it is expressed in a written document which is signed by the granter, clearly states the granter's intention and is certified by a solicitor who has interviewed the granter.
Welfare power of attorney
A Welfare power of attorney is not exercisable unless the granter is incapable or the welfare attorney reasonably believes this to be the case. The power of attorney enables the attorney to deal with the granter's personal welfare, including medical treatment, deciding on care and accommodation and cultural and social activities.
Continuing and welfare powers can be combined in one document and one attorney can have both sets of powers, or different attorneys can be appointed to deal with different aspects.
What if I don't have power of attorney?
Registering a power of attorney
Before a Power of Attorney under the new rules can be exercised it must be registered with the office of the Public Guardian. We can deal with the preparation and registration of the power of attorney and will explain to the attorneys what their responsibilities will be if they accept the role.
The office of the public guardian should be kept updated of any deaths, changes of address or any matter which may affect or bring about the termination of the power of attorney.
No close family members?
If you do not have any close family members or friends that you would want to appoint as attorney, or any that you would want to burden with that role, you can appoint one of our experienced solicitors to act as your attorney. You can then relax knowing that, if you have granted Gibson Kerr power of attorney, and you become infirm or unable to manage, you're in safe and good hands. As a family-run firm, we go beyond our professional responsibilities in how much we care about our clients. Numerous clients entrust us with their affairs in this way.
We are always aim to ensure that our clients’ best interests are protected, that, their wishes are carried out and their assets protected and used for their benefit.