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Ordinary Power of Attorney (Scotland)
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A power of attorney allows someone to choose a family member, close friend or other professional to manage your affairs in Scotland once you are unable to do it yourself.
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What is a power of attorney in Scotland?
A power of attorney is a legal document used by individuals across the UK to appoint a legal representative to deal with property and financial affairs or the individual’s welfare on their behalf. Under the Powers of Attorney Act 1971, in Scotland there are two different types of power of attorney:
- continuing power of attorney, allowing to manage property or financial aspects; or
- welfare power of attorney, dealing with health and welfare issues.
The power of attorney template Scotland must be signed and registered in the Office of the Public Guardian Scotland before it can be used.
Types of power of attorney Scotland template
Under the Adults with Incapacity (Scotland) Act 2000, there are two types of power of attorney in Scotland:
Continuing Power of Attorney
A continuing power of attorney is also known as financial power of attorney or a lasting power of attorney Scotland template. This is because the document is being used to deal with representation of individuals regarding the following:
- opening and closing savings or other accounts;
- acquiring, transferring or selling stocks and shares;
- representing individuals’ interests in front of HM Revenues & Customs or other governmental authorities;
- receiving various entitlement, benefits and pensions;
- receiving and making gifts from or for third parties;
- selling, leasing or acquiring property in Scotland, etc.
The most peculiar thing about this type of power of attorney is that it can last not only while an individual has mental capacity but also in case he or she becomes mentally incapacitated. The document must clearly state the moment from which it becomes effective. That could be the date of its registration with the Office of the Public Guardian, or any other moment in the future. It is important to remember that the power of attorney can become valid before its registration date.
Welfare Power of Attorney
A welfare power of attorney in Scotland can only become valid once the grantor or donor loses their capacity. The document is being used to cover all aspects of an individual’s life related to personal care, health and medical treatment decisions, including:
- day-to-day personal care;
- medical treatments (consenting to or refusing them);
- social activities;
- daily communication and management of correspondence.
What should be included in a power of attorney template Scotland?
A standard document must include:
Granter’s Details
The preambule of the document must outline the full name and registered mailing address of an individual issuing this power of attorney. Only the person named in the document should be able to sign and date it.
Scope of Authorities
In Scotland a standard power of attorney document may deal with property, finances, welfare or both at the same time. The text of the document must specify if it is a continuing, welfare or both continuing and welfare type of a power of attorney. It is important for a document to clearly outline the following:
- List of authorities. The powers which are not specifically mentioned in the document should be deemed as the powers that were not actually granted.
- Conditions of execution. The granter may make exercise of certain authorities and powers dependent on specific conditions.
- Jointly or severally. If several attorneys are appointed, the document must outline if the attorneys must act jointly or severally.
Certificate of Capacity
Every Scotland power of attorney template should incorporate a certificate of capacity in the attachment. This is a simple document that should be signed by a solicitor, medical practitioner or member of the Faculty of Advocates confirming the fact of signing this document by a grantor. The certificate must be issued on the same date as the power of attorney is being signed.
Top 4 mistakes to avoid when signing power of attorney in Scotland
Many individuals may not be aware of the following most common legal mistakes people make when creating a power of attorney for the first time in Scotland:
Choose a witness
An attorney appointed by this document cannot issue a certificate of capacity or witness the fact of signing this document. A witness should be any other third party that is not involved in this transaction.
Timeline
To become a legally binding document, a power of attorney has to be registered in the Office of the Public Guardian. Due to a high demand and a very tight schedule, delays in registration are quite common and may take up to several months. Therefore, it is important to plan all in advance to make sure you have a valid document once you need it.
Document’s Type
The type of a power of attorney must be stated directly in the document. This not only ensures the overall clarity of a document but also represents the main requirement for the document to be registered with the Office of the Public Guardian.
Certificate of Capacity
To prevent any further disputes in the future, as well as protect your document from being recognised as invalid in the future, make sure your capacity is duly recorded. Once it is ready, the document should be attached together with the other document. Last but not least, make sure that the grantor’s name spelt in the certificate of capacity matches the spelling stated in the text of a power of attorney. Even a minor discrepancy is a ground for rejection in registration.
Other Jurisdiction
Many residents in the UK may think that using a template from other jurisdictions, including England and Wales or Northern Ireland, is acceptable for Scotland. However, this is a big legal mistake. Jurisdictions across the United Kingdom use different terminology and legislation when it comes to the creation of a power of attorney. Therefore, we highly recommend using only jurisdiction-specific legal templates.
How to use this template?
To get a fully customisable document template, follow a few easy steps below:
- Click the “Create Document” button.
- Answer simple questions in the form.
- Select a template’s format – power of attorney Scotland template PDF or Word.
- E-sign the document.
- Make a payment.
The document is ready for instant download immediately after the purchase.
Table of content
Frequently Asked Questions (FAQ)
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1. Can I use this template to create a power of attorney that works in both Scotland and England?
No. The laws governing execution and enforcement of powers of attorney in England and Scotland differ significantly. If you need your attorney to execute certain powers in both England and Scotland at the same time, in such a case you would need to issue two documents.
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2. Can I edit a power of attorney Scotland template Word after download?
Yes. All downloadable Word files with documents’ templates are fully editable after the purchase. For more information, please refer to our Terms and Conditions.
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3. What happens if OPG Scotland rejects my power of attorney application?
The Office of the Public Guardian cannot unreasonably reject your document unless either of the following mistakes has been found:
- mismatches between the granter’s name in the document and the certificate of capacity;
- the granter does not have the mental capacity to sign the document; or
- the certificate of capacity is issued on a date other than the date of a power of attorney.
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4. Can a Scottish power of attorney be revoked?
Yes. Whether it is a will or lasting power of attorney Scotland template, it could be revoked by the grantor. However, circumstances of its revocation differ significantly. If, on the date of revocation, the granter has full mental capacity, in that case he or she can revoke it by the following methods:
- sending a written notice to all appointed attorneys; and
- registering revocation with the Office of the Public Guardian.
When, however, the granter does not have mental capacity, in such a case the power of attorney can only be revoked by the Sheriff Court if the attorney is found to be acting contrary to the AWI Act’s principles or the granter’s interests.
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