The short answer
A Power of Attorney is a legal document in which an adult, while they still have capacity, appoints someone they trust to make decisions for them if a day comes when they cannot. In Scotland it is governed by the Adults with Incapacity (Scotland) Act 2000, and it only has legal force once it has been registered with the Office of the Public Guardian (Scotland).
Scotland does not have Lasting Power of Attorney. That is the English and Welsh system, and English forms, English fees and English guidance do not apply here. A Scottish document has continuing powers (money and property), welfare powers (health and care decisions), or both in a single combined deed.
Continuing powers and welfare powers
Most people grant both, in one combined document, to the same attorney or attorneys. They are legally distinct, though, and they behave differently.
| Continuing (financial) powers | Welfare powers | |
|---|---|---|
| What they cover | Bank accounts, pensions and benefits, bills, investments, buying or selling property, dealing with care fees and financial assessments. | Where the person lives, consent to medical treatment, care and support arrangements, daily matters such as diet, dress and social contact. |
| When they can be used | Either immediately on registration, or only once capacity is lost - the granter chooses and it is written into the deed. | Only when the person no longer has capacity to make that particular decision themselves. |
| Typical trigger | Often used early, simply for convenience, with the granter's agreement. | Usually a medical opinion that the person cannot make the decision in question. |
You can appoint different attorneys for financial and welfare matters - for example a solicitor or the financially confident sibling for money, and the family member closest at hand for welfare.
Welfare powers are the ones families most often wish they had. Without them, a home cannot take instructions from you about care arrangements, and decisions about where someone lives can end up going to a formal process instead of a conversation.
How to put a Power of Attorney in place
- 01
Decide who, and how many
Choose someone you trust with both judgement and paperwork. You can appoint more than one attorney, jointly or with each able to act alone, and you can name a substitute in case your first choice cannot act.
- 02
Decide which powers, and in what detail
The deed should list the powers granted, not rely on vague wording. Standard styles exist, but a good drafter will tailor them - for example, an express power to deal with care fees, or to access digital accounts.
- 03
Have it drafted
Most people use a solicitor. You can find one through the Law Society of Scotland. Fees vary; a straightforward combined deed is commonly a few hundred pounds, and some local authorities and charities run low-cost clinics.
- 04
Get the capacity certificate
A solicitor, practising advocate or registered medical practitioner must interview the granter and certify that they understand the document and are not acting under undue influence. This step is not a formality - it is what makes the deed stand up later.
- 05
Register with the Office of the Public Guardian
The deed has no legal effect until it is registered. Registration carries a fee set by the OPG, with exemptions for people on certain benefits, and the OPG publishes current processing times on its website.
What it means when someone moves into a care home
A care move touches almost every power a Scottish attorney holds. In practice, an attorney with the right powers can:
- Sign the care home contract and agree the terms, including notice periods and fee reviews.
- Deal with the local authority financial assessment and the paperwork behind Free Personal and Nursing Care.
- Manage the person's income, benefits and personal expenses allowance while they live in the home.
- Handle the family home - renting or selling it, where that is the right decision.
- Consent to or decline treatment on welfare grounds, and be involved in care planning and reviews.
Care homes will normally ask to see the registered deed and take a copy at admission. Bring it to the pre-admission assessment along with the OPG registration confirmation - it saves a round of chasing later.
What happens if there is no Power of Attorney
If someone has already lost capacity, they cannot grant a Power of Attorney. Being next of kin gives you no automatic legal authority in Scotland - not over bank accounts, and not over where someone lives. There are three routes, in increasing order of formality.
- Access to funds. An OPG scheme allowing a named person to access a specific bank or building society account to pay for the adult's living costs. Suitable where the only issue is day-to-day money.
- Intervention order. A one-off court order for a single transaction, such as selling a house. Sensible where there is one discrete decision and nothing ongoing.
- Welfare and/or financial guardianship. A sheriff court order appointing a guardian, usually for three years initially. This is the full solution, and it is the slow and costly one - reports, medical evidence, a solicitor and a court timetable that commonly runs to several months.
Safeguards, and how a Power of Attorney ends
- An attorney must act in the adult's benefit, take account of their past and present wishes, and interfere as little as possible with their freedom.
- The granter can revoke the deed at any time while they still have capacity, by giving written notice to the OPG.
- An attorney can resign, subject to the notice requirements in the Act.
- The OPG investigates concerns about how attorneys are behaving, and the sheriff court can remove an attorney or restrict their powers.
- Financial attorneys should keep the adult's money separate from their own and keep records. Being asked for those records is normal, not an accusation.
- A Power of Attorney ends on the granter's death. It does not give the attorney any role in the estate - that falls to the executor.
This guide is general information about how the system works in Scotland, not legal advice about your circumstances. For that, speak to a Scottish solicitor.