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POA - Technical Guidance

  • The Law Society of Scotland

When planning for your future, a Power of Attorney (PoA) should be considered a priority. This legal document will take effect if you were to lose the ability to make important decisions for yourself, and will entitle your appointed Attorney(s) to act on your (the granter’s) behalf.

If you’re thinking of creating a PoA, it’s vital that you’re well informed before you make your wishes binding. Here we set out the key facts you should know about PoAs, as well as the legal requirements that must be complied with when creating one. If you’d like to discuss this guidance in more detail with our team, please don’t hesitate to get in touch.

Types of PoA

There are two types of PoA: a continuing PoA and a welfare PoA. After you’re clear about what each of these do, you should decide what type you want to create – or whether you want to create both.

1. Continuing PoA

This gives permission to your appointed Attorney(s) to make decisions about your property and financial affairs. So, under this type of PoA you could grant your Attorney(s) the power to:

  • sell your home;
  • manage your bank accounts;
  • pay your bills; and
  • collect benefits or other forms of income due to you.

Under a continuing PoA, the power for your Attorney(s) to act or make decisions on your behalf can kick in at any time you choose. Some granters opt for the PoA to be effective immediately, and for it to continue in the event of incapacity, while others decide to delay the PoA’s effect until such point as they’re deemed to have lost capacity. Your wishes regarding when the PoA should start must be set out clearly in the document.

2. Welfare PoA

This type of PoA gives power to your Attorney(s) to make decisions about your health and care. This may include powers relating to:

  • medical treatment;
  • accommodation; and
  • diet and activities.

While a continuing PoA can take effect at any time you choose, a welfare PoA will only become effective if you’ve lost capacity. Your mental capability can be determined by a medical practitioner or you can allow your Attorney to make such a judgement. Allowing your Attorney to make such decisions can possibly prevent delays in urgent situations and ensure that where a slight incapacity is evidenced that the Power of Attorney can still be used.

Sections 15 and 16 of the Adults with Incapacity (Scotland) Act 2000 introduced the concept of the Continuing Power of Attorney (basically a Power of Attorney which enabled the attorney to deal with the financial affairs of the granter), and the entirely new concept (which had not previously existed) of the Welfare Power of Attorney.  This enables the Attorney to deal with various aspects of the welfare of the granter once the latter has lost capacity. 

It is an essential feature of the Continuing and Welfare Power of Attorney granted under Sections 15 and 16 of the 2000 Act that it be made clear that they should continue to operate after intervening incapacity on the part of the granter. 

Living Wills / Advance Directives

A Living Will is concerned with medical treatment and not with your Estate.  Rather it is an Advance Directive declaring a competent person’s wishes regarding the type of medical treatment you may want or not want in the event of later loss of capacity to make decisions or communicate.

It takes the form of a formal (witnessed) declaration requesting that certain life-prolonging measures are withheld in cases where there is no prospect of recovery. There have been a number of cases where directives have been accepted as valid expressions of a person’s last living wishes.

In Scotland, the Mental Health (Care and Treatment) Act 2003 and related 2005 Guide to Advance Statements do recognise “advance statements” if a person suffers mental illness including dementia, a learning disability or a personality disorder, rather than those who lose capacity due to a degenerative disease.

When considering a Living Will or Advance Directive a discussion with your doctor is worthwhile. This may give some idea of the medical aspects and potential issues and also it may clarify whether your doctor has a personal or conscientious objection to accepting instructions and dealing with the directions in the document when appropriate.

Another reason is that the efficacy of the direction may turn on your capacity at the time of making the Living Will declaration. It would be helpful to demonstrate that your decisions were informed and balanced. Doctor’s notes may help support that assertion. 

A copy of the declaration should be kept with your medical file and solicitor his family or close friends should be informed of its existence and location and it is advisable to have it registered centrally by NHS Scotland. Further you may wish to carry a note or card with them, so as to alert medics in an emergency that there is a Living Will.

Your Attorneys

Who can you appoint?

You are free to choose who you’d like to act on your behalf. When you do, it’s important to focus on the people you trust the most and those who you are confident can manage the responsibilities.

Under the law, an Attorney must be over 16 and mentally capable. An individual or an organisation – such as a law or accountancy firm – can act as your Attorney for a continuing PoA. Under a welfare PoA, however, only individuals can be appointed.

How many Attorneys can you choose?

You can have more than one Attorney. In this case, you should clearly state the responsibilities each Attorney would have. For example, you may wish two relatives to act jointly in relation to your welfare, and a solicitor or firm to make decisions regarding your finances and property. You may also want to name a substitute Attorney to take over the responsibilities of an Attorney that passes away or stands down.

Discussions with your Attorney(s)

It’s important that you make your wishes known to your appointed Attorney(s). This will include what actions and decisions you would want them to take with regard to investments with your money and property, as well as particular care arrangements and medical treatments you’d be happy or unhappy with. It’s also highly recommended that you make a written record of what you’ve discussed.

Creating your PoA—the legal requirements

The rules governing PoAs are set out in the Adults with Incapacity (Scotland) Act 2000. The legislation requires that a PoA:

  • is created by someone who is over the age of 16 and mentally capable;
  • is in written form;
  • is signed by the granter;
  • clearly states whether the powers are continuing, welfare or both;
  • includes a statement which shows the granter acknowledges how incapacity will be determined; and
  • incorporates a certificate signed by a practicing solicitor, advocate or doctor.

On this last point, the professional who signs the certificate will only do this if:

  • they’ve interviewed you right before you sign the PoA;
  • they’re satisfied that you understand the nature of the document’s contents; and
  • they’ve no reason to believe you’re acting under pressure. 

Registering your PoA

For your PoA to be valid and effective, it must be registered with the Office of the Public Guardian of Scotland. This should happen as quickly as possible after you’ve signed the document, and it can be done online. Once received, the Office of the Public Guardian will review your PoA – to make sure there are no errors or matters that need explanation – before registering it. You will receive a certificate of registration, which you should store somewhere safe – along with a copy of your registered PoA.

Claphams Solicitors—Power of Attorney Service

A PoA can have a significant impact on your future, so it’s highly recommended that you seek advice and support from a professional when creating yours. At Claphams, we provide a full PoA service, which includes:

  • advice on the specific powers to grant, and on how to word these to avoid ambiguity and to make sure they are sufficient to meet your needs;
  • guidance on who you can appoint as your Attorney(s) and what their responsibilities will be;
  • completing and signing the required certificate that must accompany your PoA;
  • attending discussions with your Attorneys about your wishes and feelings, and noting down the matters discussed;
  • advice on when a PoA should be updated to reflect a change in your circumstances; and
  • keeping a copy of your registered PoA document safely stored.

Contact Claphams Solicitors, Clarkston, Newton Mearns, Giffnock, Netherlee,Eaglesham, Carmunnock, Stewarton Southside Glasgow 

If you’re looking for Power of Attorney legal services in Clarkston, Newton Mearns, Giffnock, Netherlee, Eaglesham, Carmunnock, Stewarton and Glasgow Southside, please contact Claphams Solicitors today on 0141 620 0800 or complete our online enquiry form.

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