CONTINUING AND WELFARE POWERS OF ATTORNEY: (Scotland)


An attorney is someone whom you appoint to make decisions or manage finances for you. The Power of Attorney is the document which makes the appointment and specifies the powers given to the attorney. You choose the attorney and decide what powers the attorney should have. These matters require careful thought. The chosen attorney will be able to act in your name, without referring back to you, within the scope of the powers which you decide to give, but will not be able to act outwith those powers.

Powers to manage property and finances may range from a single specified transaction to all your finances and affairs. They may last only for a specified period, such as an absence abroad, or be open-ended. They may continue in force if you lose capacity, or only come into force if you lose capacity, but only if you specifically say so in the Power of Attorney and only if various requirements are met. These include a certificate which must be appended to the Power of Attorney as soon as you sign it. The certificate confirms that you have capacity and that no-one else is pressuring you. The authorised person who signs the certificate may need to speak to your doctor and others about this. Such a Power of Attorney must be registered with the Public Guardian before it can be operated. (Falkirk).

You can give personal welfare powers to your attorney. A welfare attorney can only act if you lose capacity, and similar requirements apply.

If your capacity becomes impaired and you have not already appointed an attorney, it may be necessary for a court to appoint a guardian. That might not be the person whom you would have chosen, and the powers given might not be those which you would have wanted. Your capacity could be impaired gradually in old age, or suddenly because of an accident or illness. If you want to cover such a situation, you should seriously consider granting a Power of Attorney. As with making a Will, do not put it off forever.
If you have lost capacity and someone else is worried about what the attorney is doing, they can apply to the Public Guardian if the attorney has financial powers and to the Local Authority Social Work Department if the attorney has welfare powers. If necessary, the Sheriff Court can be asked to give instructions to the attorney, put the attorney under supervision, cancel some of the attorney's powers, or cancel the whole appointment.

The Public Guardian's Office (Scotland) can be found at:

www.publicguardian-scotland.gov.uk