Planning for the future is a crucial aspect of responsible living, and in Glasgow, as throughout Scotland, a Power of Attorney (PoA) is an indispensable legal tool for safeguarding your interests. A PoA allows you to appoint someone you trust to make decisions on your behalf should you become unable to do so yourself, whether due to illness, accident, or declining mental capacity. This comprehensive guide will delve into what , its different types, how to establish one in powers of attorney Glasgow , associated costs, and how it can be revoked.
What is a Power of Attorney?
At its core, a Power of Attorney is a legal document where an individual (the “Granter”) grants authority to another person or persons (the “Attorney” or “Attorneys”) to manage their affairs. This authority can cover a wide range of matters, from financial and property decisions to personal welfare and healthcare choices.
Crucially, a PoA offers peace of mind, ensuring that your wishes are respected and that your affairs are managed by someone you have explicitly chosen, rather than leaving it to the courts to appoint a guardian, which can be a lengthy, costly, and stressful process for your loved ones.
Types of Powers of Attorney in Scotland
In Scotland, there are three primary types of Powers of Attorney, as governed by the Adults with Incapacity (Scotland) Act 2000:
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Continuing Power of Attorney (CPOA): This type grants your Attorney powers to deal with your property and financial affairs. This can include managing bank accounts, buying or selling property, and claiming benefits. A CPOA can be set up to take effect immediately upon registration or only when you lose mental capacity.
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Welfare Power of Attorney (WPA): A WPA empowers your Attorney to make decisions about your health and personal welfare. These decisions can cover aspects like medical treatment, where you live, and your daily care. Importantly, welfare powers can only be exercised if and when you lose the capacity to make these decisions for yourself.
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Combined Power of Attorney: As the name suggests, this is the most common type of PoA, encompassing both Continuing (financial) and Welfare powers within a single document. This provides comprehensive coverage for both your financial and personal well-being.
It’s also worth noting the General Power of Attorney (GPA), which is typically used for a specific, limited purpose or period, and does not remain valid if the Granter loses mental capacity. GPAs do not require registration with the Office of the Public Guardian (OPG) in Scotland.
Why is a Power of Attorney Important?
Many people mistakenly believe that their next of kin, such as a spouse or children, will automatically have the legal right to make decisions for them if they become incapacitated. This is not the case in Scotland. Without a valid PoA, your family may face the complex and expensive process of applying for a Guardianship Order through the courts to gain the authority to manage your affairs. A PoA avoids this by putting your chosen decision-makers in place beforehand.
Setting Up a Power of Attorney in Glasgow
Establishing a Power of Attorney in Glasgow, and indeed across Scotland, involves several key steps:
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Choose Your Attorney(s): This is perhaps the most critical step. Your Attorney should be someone you trust implicitly, is over 16 years old, and is willing to take on the responsibility. They cannot be bankrupt if they are to manage your financial affairs. You can appoint one or more Attorneys, and you can assign different Attorneys for financial and welfare matters if you wish. It’s also advisable to consider appointing substitute Attorneys in case your primary Attorney is unable to act.
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Drafting the Document: While it’s possible to draft a PoA yourself, it is highly recommended to use a solicitor. A solicitor will ensure the document accurately reflects your wishes, grants sufficient powers to your Attorney, and is legally sound. They can guide you through the various decisions that may need to be made in the future and ensure no crucial aspects are overlooked. The document must clearly state whether the powers are continuing, welfare, or a combination of both.
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Certificate of Capacity: A crucial legal requirement in Scotland is that the PoA document must be certified by a solicitor registered to practice in Scotland, a practising member of the Faculty of Advocates, or a registered UK medical doctor. This professional must interview you (the Granter) immediately before you sign the document to confirm that you understand what you are doing and are not under any undue influence. This ensures you have the mental capacity to grant the powers.
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Signing and Witnessing: The document must be signed by the Granter. While not explicitly stated as a requirement for all PoAs, it is good practice for the Granter’s signature to be witnessed by someone who is not an Attorney.
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Registration with the Office of the Public Guardian (OPG) in Scotland: For Continuing and Welfare Powers of Attorney to be legally valid and actionable, they must be registered with the OPG in Falkirk. A registration form will need to be completed and signed, typically by the Attorney, and submitted along with the PoA document and the certificate of capacity. Once registered, the OPG will return the original PoA and issue a Certificate of Registration.
Costs Associated with a Power of Attorney in Glasgow
The cost of setting up a Power of Attorney in Glasgow generally involves two components:
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Solicitor’s Fees: These fees can vary depending on the complexity of your wishes and the solicitor you choose. For a straightforward combined financial and welfare PoA, fees can range from around £250 to £450 plus VAT. Some firms offer discounted rates for couples.
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Office of the Public Guardian (OPG) Registration Fee: The OPG charges a statutory fee to register each Power of Attorney. As of current information, this fee is typically around £96.
It’s worth exploring whether you qualify for Legal Aid, which can significantly reduce or even eliminate the cost of legal fees if you are on a low income or receive certain benefits. Information on eligibility can be found on the Scottish Legal Aid Board’s website.
Revoking or Amending a Power of Attorney
You can revoke or amend your Power of Attorney at any time, provided you still have the mental capacity to understand and make such a decision.
To revoke a PoA, you will need to provide the OPG with a written revocation notice clearly stating your intentions. This notice must be signed and dated by you (the Granter) and accompanied by a revocation certificate completed by a solicitor, advocate, or medical practitioner, who must interview you to confirm your understanding of the revocation.
If you wish to amend specific powers or remove an Attorney while keeping others in place, you can also do so by informing the OPG with a clear revocation notice and accompanying certificate. If you wish to make substantial changes or appoint new Attorneys, it’s often advisable to create a new Power of Attorney document, which would then also require registration.
Acting as an Attorney
If you are appointed as an Attorney, it’s crucial to understand your duties and responsibilities. You must always act in the Granter’s best interests and adhere to the general principles of the Adults with Incapacity (Scotland) Act 2000. Key responsibilities include:
- Respecting the Granter’s wishes and preferences.
- Consulting the Code of Practice for Continuing and Welfare Attorneys issued by the Scottish Government.
- Keeping accurate records of all decisions and financial transactions.
- Keeping the Granter’s money and property separate from your own.
- Informing the OPG of any changes to your or the Granter’s circumstances (e.g., change of address, death, bankruptcy).
Conclusion
A Power of Attorney is a vital legal instrument that empowers you to control your future, even if you are no longer able to make decisions for yourself. In Glasgow, as elsewhere in Scotland, taking the proactive step of establishing a PoA provides invaluable peace of mind for both you and your loved ones. By understanding the types of PoAs available, the process of setting one up, and the responsibilities involved, you can ensure your affairs are managed according to your wishes, no matter what the future holds. Consulting with a reputable Glasgow solicitor is highly recommended to ensure your Power of Attorney is robust, legally compliant, and perfectly tailored to your individual needs.
