Power of Attorney in Scotland

If you are looking to set up a LPA for someone living in Scotland, it’s worth remembering that some aspects of the agreement and document are different to the one for England and Wales

If you or your loved one is living in Scotland and you need to create a Power of Attorney for them, the version you make will be slightly different to one you would make if you were living in England or Wales, although it essentially provides the same powers.

It might be a good idea to read the information provided in the rest of our LPA articles, and then read this article so you’re aware of the few differences.

What’s different?

Granter v Donor
The person who gives permission to set up a power of attorney in Scotland is known as the ‘Granter’. In England and Wales, they are known as the ‘Donor’. However, like England and Wales, the person (or people) acting for the Granter are known as attorneys.

Continuing Power of Attorney & Welfare Power of Attorney
In England and Wales, there are two types of power of attorney which you can set up. These are Property and Finance LPA and Health and Welfare LPA.

In Scotland, you set up a Continuing Power of Attorney if you wish to look after the property and finances of someone. This will mean you can manage bank accounts or sell a house. This can be arranged to be effective immediately (before the Granter has lost capacity) or only once they are unable to make decisions.

A Welfare Power of Attorney is much the same as in England and Wales, in that it lets someone make decisions about health and welfare, including where you live, medical treatment and personal care. This will only come into force once you lose mental capacity.

Adults with Incapacity (Scotland) Act 2000
The law that governs power of attorney and mental capacity in Scotland in known as Adults with Incapacity (Scotland) Act 2000. Sometimes it is just called ‘the Act’. It’s designed to protect and safeguard people who have or may go on to lose capacity. A similar version in England and Wales would be the Mental Capacity Act 2005.

The Act states that a person lacks mental capacity if they are unable to make, communicate or understand decisions. It stipulates that mental capacity can change from day to day, as can the ability to make decisions, and an attorney must always take into account ‘present and past feelings and wishes as far as possible’.

Age limits for attorneys
In England and Wales, the attorneys need to be at least 18 years old in order to take up their role. In Scotland, they have to be over 16 years old. However, other attorney prerequisites remain the same, including being financially soluble, responsible and able to act in your best interests.

Substitute attorneys
In Scotland, this is the name given for replacement attorneys. This is someone who can take up the role of attorney if someone steps down or is no longer able to act as an attorney.

The fees
Registering a Power of Attorney document has a different fee in Scotland compared to England in Wales. These are:
Submitting a Power of Attorney document:                         £73
Registering a Deed of Amendment to a POA:                      £73
Duplicate or replacement certificates:                                  £24
Audit of accounts for a Continuing Power of attorney:        £115

Guardians v Deputies
In Scotland, if there is no Power of Attorney set up and the person with dementia has already lost their mental capacity, then the Court of Protection appoints a Guardian to manage their affairs (in England and Wales they are called a Deputy).

What’s the same?

Powers and responsibilities
The Power of Attorney laws in Scotland are designed to help you manage and look after the interests of someone who can no longer make decisions for themselves. They cover off both finance and property, and health and welfare.

As with England and Wales, acting as an attorney means making decisions that follow similar principles as it is a position based on absolute trust. They must benefit the person, take their wishes into account, and be the least restrictive ones possible. Relevant people must be consulted if appropriate and the person who you’re making the decision for must also be encouraged to partake if possible, particularly if you think they may regain some capacity on another day.

The process
Making and registering a Power of Attorney is handled by the Office of the Public Guardian for Scotland. This is a different body to the one in England but it essentially manages the same issues.

You can either choose to fill out the forms yourself, or you can receive help and advice from a solicitor.

The attorneys
You can set up joint attorneys who can make decisions about your life, and you can also appoint different people to be attorneys for finance and others to be attorneys for personal welfare.

What happens if the donor moves from England to Scotland? Does the Power of Attorney still hold?

A Power of Attorney that was set up in England is recognised in Scotland, and for some actions the English document itself may be sufficient. However if you wish or need to enforce its use in Scotland, the English document needs to be registered in Scotland. Permission for this is granted by the local Sheriff Court then registration is with the Office of the Public Guardian for Scotland. This will then give the document the same status as an original Scottish Power of Attorney.

NB: Unfortunately, Unforgettable’s Lasting Power of Attorney Service only helps to create an LPA for those living in England and Wales. If you live in Scotland and wish to set one up, please click here.