If you’re looking to set up a power of attorney in Scotland, we’re here to help.
In England or Wales? Visit our power of attorney page for England and Wales.
What is a power of attorney?
A power of attorney (POA) is a legal document that allows a granter to put someone they trust in charge of any important decisions. They can name just one person or choose several people to act on their behalf. Anyone named in the document becomes an ‘attorney’.
They can put a power of attorney in place on a temporary or long-term basis. For example, if they're in hospital and need help managing their household bills, or if they’ve been diagnosed with an illness that means they won’t be able to make their own decisions.
To create a power of attorney, the granter needs to have the mental ability to make financial, property, and medical decisions for themself. The power of attorney is usually created by a solicitor or through the government website.
Find out more about creating a power of attorney: https://www.publicguardian-scotland.gov.uk/
Types of power of attorney
A continuing power of attorney allows attorneys to make financial decisions and carry out day-to-day transactions on the granter’s behalf.
A granter may appoint one or more joint attorneys and can choose whether joint attorneys can act individually or together. A granter can choose whether a continuing power of attorney takes effect straight away or only comes into effect if they lose capacity.
If one dies or resigns, the POA comes to an end.
While we cannot accept a welfare power of attorney, a granter may appoint both continuing and welfare attorneys in the same power of attorney document, which is known as a combined continuing and welfare power of attorney.
Ordinary power of attorneys tend to be used to authorise an attorney to carry out a specific transaction or act for a granter. They are usually limited to one-off transactions or a series of related transactions and tend to be used in financial matters. For example, the purchase of property or sale of a business.
Ordinary powers of attorney granted on or after 2 April 2001 end if the granter loses capacity. However ordinary power of attorneys granted before 1 April 2001 automatically convert to becoming continuing or welfare power of attorneys. These converted powers do not need to be registered with the Public Guardian.
A continuing power of attorney allows attorneys to make financial decisions and carry out day-to-day transactions on the granter’s behalf.
A granter may appoint one or more joint attorneys and can choose whether joint attorneys can act individually or together. A granter can choose whether a continuing power of attorney takes effect straight away or only comes into effect if they lose capacity.
If one dies or resigns, the POA comes to an end.
While we cannot accept a welfare power of attorney, a granter may appoint both continuing and welfare attorneys in the same power of attorney document, which is known as a combined continuing and welfare power of attorney.
Ordinary power of attorneys tend to be used to authorise an attorney to carry out a specific transaction or act for a granter. They are usually limited to one-off transactions or a series of related transactions and tend to be used in financial matters. For example, the purchase of property or sale of a business.
Ordinary powers of attorney granted on or after 2 April 2001 end if the granter loses capacity. However ordinary power of attorneys granted before 1 April 2001 automatically convert to becoming continuing or welfare power of attorneys. These converted powers do not need to be registered with the Public Guardian.
Mental capacity
When a power of attorney is registered with us, we’ll ask whether the granter still has the mental capacity to manage their financial affairs. If the power of attorney is not entirely sure how to answer, the Scottish Government website has more information about mental capacity and about the practical application of this.
Attorneys may need to support someone they know who has lost the capacity to deal with their financial affairs. This government guide contains useful information: Make decisions on behalf of someone
What can a power of attorney do?
An attorney can help make decisions about the donor’s finances and act on their behalf.
The granter can appoint one person as a sole attorney, or several people either jointly or severally. With joint power of attorney, all attorneys need to act together. This means any services which would allow just one attorney to access the account by themselves, such as debit cards, internet banking, mobile banking, and telephone banking cannot be provided . Joint attorneys can access the granter’s account by visiting a local branch together.
If the power of attorney document contains restrictions, we need to comply with them. This might mean that we cannot provide certain services.
Below is a full breakdown of what a power of attorney can do:
Popular questions
Yes.
If more than one attorney is chosen, the granter will need to pick whether they are to act together (jointly) or if they can act both together or individually (jointly and severally).
It’s worth knowing that attorneys acting 'jointly' won't be able to access telephone banking, online banking, mobile banking, or have a debit card. Joint attorneys can manage the granter’s account by visiting their local branch together.
Yes, it’s the same process as appointing an individual as an attorney. However, video banking isn’t available to solicitors or firms.
If the granter of the power of attorney passes away the POA is no longer valid. The attorney will not have the authority to manage the financial affairs of the deceased.
We’re usually not able to accept foreign power of attorneys but may be able to do so in exceptional circumstances.
If there are any restrictions in the power of attorney, we need to comply with them. This might mean that the attorneys cannot access some of our services, such as telephone banking, online banking, mobile banking, or having a debit card.
It may also take longer to register with us because we may need additional information.
The witness can be anyone aged over 16, such as a friend, family member, neighbour, colleague or solicitor. They must not be an attorney or replacement attorney under the same continuing power of attorney.
The witness must see the donor sign the continuing power of attorney form in person and then sign it themselves.
To revoke or cancel a power of attorney, the granter will need to contact the office of the public guardian for advice, as the process for this is different depending on the type of power of attorney held.
Continuing POA and Ordinary POA
If the granter would like to stop their attorney acting for them, they need to contact the office of the public guardian to revoke the power of attorney. In addition, please let us know as well so we can stop the attorney from accessing the granter’s account whilst the Office of the Public Guardian Scotland processes the revocation.
A next of kin does not override a power of attorney.
A granter can either apply directly through the office of public guardianship, or do it using a solicitor.
