Page 2 - Guide To Powers of Attorney

LEGAL CAPACITY

In Scotland all persons over the age of 16 are presumed to have “legal capacity”. “Legal capacity” is the
ability someone has to make decisions for them and to look after their own affairs.

Of course people may lose these abilities ‐ usually as a result of illness. Where someone loses legal capacity
the law provides various ways whereby another person may be granted powers act on behalf of the party
who has lost capacity.

One of the ways this can be done is for a person himself or herself to anticipate their own future incapacity
and to grant powers to a person or persons to act for them when incapacity arises. Powers are granted by
signing a document called a “Power of Attorney”. This document spells out who the attorney is and what
powers he or she may use.

THE POWER OF ATTORNEY (POA)

The person creating the POA is called the “granter” and the person appointed is called the “attorney”.

There are various types of these documents. You can grant a “Simple” POA – which is an authority to
someone generally to do one specific act. For example someone might by a simple POA authorise their
lawyer to sign say a house transfer document if they are expected to be abroad when the deed becomes
ready to sign. More commonly we have “Continuing” POA’s and “Welfare” POA’s. Continuing POA’s grant a
series of financial and legal powers to the attorney such as dealing with property and money. Welfare POA’s
grant a series of powers to make decisions on personal day to day living issues such as where to stay, diet,
dress and medical treatment. In each case the attorney will only have the powers specifically mentioned in
the POA itself.

You can have a combined Continuing and Welfare POA and most POA’s are probably nowadays these joint
documents.

All POA’s to be valid must be registered with the Public Guardian. The Public Guardian is an official with
various powers to oversee how adults with incapacity are dealt with in Scotland. Most of the law governing
this legal area is in the Adults with Incapacity (Scotland) Act 2000. Under that act someone over 16 who has
lost legal capacity is called an “Adult”.

The continuing powers under a POA usually come into force and can be used as soon as the POA is
registered with the Public Guardian. This means they could be used by an attorney if the granter could not
do something for themselves for a reason short of permanently losing capacity. For example if the granter
was stuck abroad and could not deal with affairs the attorney could step in.

Welfare powers however can only be used when capacity has been lost and if it is not clear medical opinions
may be sought on this.