Having a Power of Attorney (POA) allows you to arrange what you want another person to do for you in the future if you become unable to make decisions for yourself. You can also make choices and carry out tasks on behalf of another person, managing what their affairs entail. It is true that you can manage someone’s affairs in a variety of ways; it just depends on what they want or need help with as well as what you are willing to do for them. In this guide, we will explain in detail the Power of Attorney in Scotland, the cost, and how to get a POA. Read on and have fun.
What Is a Power of Attorney?
A power of attorney is a written document that includes a certificate that is signed by a solicitor who is also licensed to practice law in Scotland. Or, maybe a practicing member of the Faculty of Advocates or a licensed medical doctor in the UK.
In other words, POA is a written instrument that is usually prepared by a solicitor. This document will specify the person (the attorney) you want to assist you in making decisions and doing acts(managing your money, property, health, and welfare) on your behalf. However, while it is possible to name more than one person, you should choose someone you trust, such as a family member or friend, or your solicitor, to be your counsel
In addition, the attorney’s powers are always on a list, as is when he or she will begin operating on your behalf. Likewise, attorneys have a legal obligation to keep track of their actions. If you only have one attorney named and he or she is no longer able to act on your behalf, you’ll need to create a new power of attorney.
However, according to the law, someone who is bankrupt or has a safe trust deed in place can form a POA to deal with their personal welfare decisions, but not their financial or property matters. Likewise, as long as you are 18 and above, you can set one up at any time once you can weigh up information and make decisions on your own.
Types Of POA
We have three types of Power of Attorney below
#1. Continuing Power of Attorney
This Power of Attorney allows you to deal with money and/or property on your behalf. Normally, the powers are instantly available to the attorney after registering the POA paperwork with the Office of the Public Guardian. However, if you only want the PoA to be in use if you lose capacity, it must explicitly say not to activate or use that power until that exact time. Likewise, you should include a declaration regarding who should make this choice about your inability.
#2. Welfare Power of Attorney
This sort of POA deals with health or personal welfare decisions. Though, only when the POA has been filed and the granter has lost the capacity to make decisions in these areas may welfare powers be employed.
#3. Combined Power of Attorney
The most common type of Power of Attorney in Scotland includes both ongoing (financial) and welfare powers. However, the granter, on the other hand, can choose which powers to grant.
Major Players in a Power of Attorney
Grantor
The grantor is the individual who seeks to delegate decision-making authority to another person. “Donor” is another name for them in England and Wales.
Attorney
If the grantee is in desperate need of someone to act on their behalf, the person they nominate is the attorney. The attorney will assist the grantee in the decision-making process by managing their money, property health, and welfare.
Substitute Attorney
In some cases, the grantor appoints a substitute attorney to take over from the attorney if the latter is unable to act for some reason.
Sender
The sender is another major player. This is the person in charge of filing the POA for registration, usually a solicitor.
Pinpointed individual
Up to two people can be named in the document and given a copy of the registered POA for their records or information purposes.
Power of Attorney in Scotland
In Scotland, ordinary Powers of Attorney (OPA), otherwise known as General Powers of Attorney (GPA), do not need to be registered before being used.
Generally, to oversee their financial affairs when the individual giving authority lacks capacity, you need a Continuing Power of Attorney (CPA). Nevertheless, the Scottish OPG must be aware of this.
However, a well-being Power of Attorney (WPA) is necessary to make decisions about a granter’s health and welfare. This must also be registered, and it can only be utilized if the donor is unable to do so. At the same time, you can also establish a combined Power of Attorney. This combines the capabilities of both a CPA and a WPA.
On the other hand, only a prescribed person in Scotland can attest that you are capable of granting the Power of Attorney. A solicitor licensed to practice law in Scotland or a certified UK medical doctor must assess you. This is part of the process to ensure that you understand the nature and consequences of a Power of Attorney.
However, it’s too late to register for a CPA or WPA if your loved one is no longer capable of making their own decisions. In this case, you can bring an application for a ‘Guardianship Order’ to the appropriate Sheriff Court.
Who can be an attorney in Scotland?
An attorney can be anyone over the age of 16 who is willing to represent you. Nonetheless, if they are bankrupt, they may not be able to obtain a financial (Continuing) Power of Attorney.
Likewise, you can have as many attorneys as you like, and they don’t have to be individuals with financial problems. You could, for instance, engage a firm of solicitors. However, when it comes to a Welfare Power of Attorney, the attorney(s) must show up in person.
How to write a Power of Attorney
A power of attorney can be drafted by a solicitor or purchased as a template from legal stationers. Meanwhile, you can download an example of a typical PoA document online on the Office of the Public Guardian’s website,
However, if you take this example as a guide, you’ll need to modify it to fit your needs. It is critical to carefully evaluate the wording of a POA because it is open to interpretation. Also, you must ensure that it truly expresses your desires. Likewise, if your case is intricate, you should get legal counsel before submitting the paperwork for registration.
In addition, the POA document includes a Schedule 1 Certificate, which confirms the granter’s mental competence and is certified by either a qualified solicitor or a medical doctor.
Cost of Power of Attorney in Scotland
Normally, you must also submit payment to the OPG when you return the signed Power of Attorney documents.
However, in England and Wales, each Power of Attorney costs £82, so registering a property and financial affairs LPA, as well as a health and welfare LPA, will set you back £164.
On the other hand, the charge is £81 in Scotland and £151 in Northern Ireland. Meanwhile, you can seek a 50% discount if your annual income is less than £12,000. Likewise, if you receive certain benefits, such as Income Support, you may be eligible for an exemption.
On the contrary, some people prefer to have a lawyer prepare their Power of Attorney. This can help to avoid mistakes that can lead to an application being denied. However, the cost of using a solicitor is far higher; some charge as much as £500 plus the £82 OPG fee.
How To Get Power of Attorney Scotland
Below is a step-by-step guide on how to set up and register a power of attorney:
#1. Choose an attorney to act on your behalf
In the Power of Attorney forms, you will need to enter details of the attorneys you desire to designate and the capacity in which you want them to act (jointly or ‘jointly and severally).
However, being able to act severally means each attorney can exercise the Power of Attorney independently. So, this is a huge advantage when attorneys live some distance away.
Likewise, banks and building societies typically seek one of the joint attorneys to stand as the lead. Nevertheless, unless they may act severally, their capacity for movement is severely constrained. Meanwhile, it’s possible to set different limits and conditions for your counsel. Although it may be rejected if it is impracticable.
However, take care only if you are just picking one attorney and they share the property with you. In addition, If you lost mental capacity, your attorney would have to appoint another person to operate as a ‘trustee’ before selling the property could be possible.
#2. Get signatures from certificate providers
The paperwork must be signed by a ‘certificate provider’ (typically your doctor) who attests to your comprehension (capacity), and by each of the attorneys, you have chosen.
Normally, before they submit the paperwork, you, your attorneys, and your witnesses will all need to sign.
#3. Notify ‘those who need to know with LP3 forms
Typically, they will ask you to identify ‘those who need to know in the Power of Attorney forms. This simply means people should know that you are planning to register a Power of Attorney.
Meanwhile, if you’ve identified somebody in this situation, make sure you send them a notification form (LP3). They have only three weeks to raise any complaints with the OPG.
However, it is not mandatory for you to name anyone in this part if you do not choose to.
#4. Fill out and submit the Power of Attorney paperwork to OPG.
You must send the Power of Attorney paperwork to the OPG with payment after signing it. At the same time, you can submit your LPA online if you used the government’s online facility to establish it. Otherwise, you’ll have to fill out sections 12 to 15 of the paper forms and return them to the Public Guardian’s Office.
Meanwhile, a Lasting Power of Attorney might take anywhere from eight to ten weeks to register. While, due to delays at the OPG, it could take up to 20 weeks.
#5. File your Power of Attorney with the court.
Once you have signed the OPG, you will get a stamped copy of the Power of Attorney. This will indicate that you have OPG approval and that your registration is successful. Note that an LPA is not legitimate, and you cannot use it without the stamp of the OPG.
LPA is not legitimate, and you cannot use it without the stamp of the OPG. You can pick who receives the registered Power of Attorney and whether to keep it for yourself or give it to your attorney.
In addition, if you use a solicitor to file your application, the POA is usually kept on file until one of your attorneys requests it. Likewise, certified copies of the POA should be obtained and used with banks and other institutions as needed. However, you should keep the original safe.
Choosing a Power of Attorney
A Power of attorney, just like the property deed for your house or automobile, gives you a lot of your own power and responsibilities. In the instance of a medical POA, it’s a question of life and death. If you have a durable POA that has been mismanaged or misused, you may face financial difficulties or insolvency. As a result, you should select your agent with caution to ensure that they execute your preferences to the fullest extent feasible.
Likewise, it is vital to appoint an attorney who is both reputable and competent. This is because this individual will have the same legal authority as you. And any errors your attorney makes may well be difficult to rectify. Worse yet, depending on the scope or level of the authorities you delegate, personality may well be a risk. In addition, an attorney may have access to your bank accounts. As well as having the ability to make gifts, transfer funds, and sell your home.
Any mature individual, even a professional such as a solicitor, accountant, or banker, can act as your attorney. However, your attorney could be a member of your family, such as a partner, adult child, or some other relative. Meanwhile, by appointing a family member to act as your agent, you can avoid paying service charges. Also, you can keep secret information regarding your money as well as other personal affairs in the family.
Conclusion
A power of attorney as a legal document enables you to make future plans when you are capable of doing so. It delegated authority to another person, known as the attorney, to handle certain areas of your affairs, which could be about money, property, or personal well-being.
Power Of Attorney FAQs
Can a family member override a power of attorney?
The Principal can override either type of POA whenever they want. However, other relatives may be concerned that the Agent (in most cases a close family member like a parent, child, sibling, or spouse) is abusing their rights and responsibilities by neglecting or exploiting their loved one.
Do I need a power of attorney if I have a will?
Indeed a power of attorney in Scotland is vital for anyone regardless of age, who has money and assets to protect and/or who wants someone to act in their best interest in terms of healthcare choices should they be unable to make decisions for themselves
What three decisions Cannot be made by a legal power of attorney?
You cannot give an attorney the power to act in a way or make a decision that you cannot normally do yourself – for example, anything outside the law. consent to a deprivation of liberty is imposed on you, without a court order.
Who has power of attorney after death if there is no will?
What Happens After Death of the Principal? Upon the death of the principal, the power of attorney is no longer valid, and instead, the will is executed. Instead of the agent, now the executor of the will is responsible for carrying out the demands of the principal through the will.
