Power of Attorney (Scotland)
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A Power of Attorney (PAO) is a written legal document giving someone else the authority to act and make decisions on their behalf should they become unable to do so for themselves. All decisions made under POA must be of most benefit to the person.
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When it comes to arranging POA for a person diagnosed with dementia, it should be attended to as early as possible; preferably before they are no longer considered to have capacity to make complex decisions, as the POA allows others to make complex decisions on their behalf.
In Scotland there are two types of POA:
Continuing Power of Attorney
Financial and property may be exercised immediately and continuing if the granter loses capacity OR beginning when the granter loses capacity.
Welfare Power of Attorney
Health, personal care and welfare, cannot be exercised until the granter has lost the capacity to make these decisions.
Combined Power of Attorney
This is where both powers are granted to the same decision-maker, financial and welfare.
The document includes a certificate signed by a solicitor who is registered to practice law in Scotland, or a medical doctor working in the UK and registered with the Office of the Public Guardian in Scotland.
These powers may be granted to an individual of the person’s choosing, or they may be appointed to more than one person and can be for either one or both.
Individuals have scope to grant whatever powers they choose, however as these powers will be strictly interpreted, the individual (the granter) should ensure that the powers granted are specific and cover all the relevant aspects of their affairs, and/or health and welfare.
It is important to understand that the POA is not the same as a will, this is entirely different. A will is a legal document where you set out what you want to happen to your assets, your assets, your home and your money upon death.
Anyone over the age of 16 in Scotland can make a POA, however they must be considered to have the capacity, that is the understanding, of what they are doing by granting this.
The English equivalent of a Scottish ‘Continuing and Welfare POA’ is a ‘Health and Welfare Lasting POA’, and although both are comparable in their aims there are differences. An English POA will only be effective in Scotland if the organisation to which it is presented agrees to accept it, as there is no formal legal recognition as such. Accordingly, it is simply not possible to predict in advance whether the POA will be valid until it is too late to do anything about it. Therefore, the safest option is to make a new Scottish POA if you move from England or Wales to Scotland.
