Establishing a Power of Attorney (PoA) is a proactive and responsible decision that ensures your affairs are managed according to your wishes, even if you become unable to do so yourself. For residents of Glasgow, navigating the Scottish legal framework for power of attorney Glasgow is crucial. While it’s always recommended to seek professional legal advice, this step-by-step guide outlines the typical process involved.
Why You Need a Power of Attorney
Before diving into the “how,” it’s vital to understand the “why.” In Scotland, your next of kin do not automatically gain legal authority to manage your affairs if you lose mental capacity. Without a PoA, your family would face the lengthy, costly, and often stressful process of applying to the Sheriff Court for a Guardianship Order to obtain this authority. A PoA avoids this by putting your chosen decision-makers in place beforehand, providing peace of mind for you and your loved ones.
The Types of Power of Attorney in Scotland
In Scotland, there are three main types of PoA, governed by the Adults with Incapacity (Scotland) Act 2000:
- Continuing Power of Attorney (CPOA): Deals with your financial and property affairs (e.g., managing bank accounts, selling property, paying bills). This can be effective immediately upon registration or only when you lose capacity.
- Welfare Power of Attorney (WPA): Deals with your personal welfare and healthcare decisions (e.g., medical treatment, daily care, living arrangements). This can only be exercised if and when you lose mental capacity.
- Combined Power of Attorney: The most common choice, incorporating both Continuing and Welfare powers into a single document for comprehensive coverage.
Your Step-by-Step Guide to Setting Up a PoA in Glasgow:
Step 1: Choose Your Attorney(s)
This is the most critical decision. Your Attorney(s) should be:
- Completely trustworthy: They will hold significant power over your affairs.
- Reliable and responsible: Especially for financial matters.
- Over 16 years old.
- Not bankrupt if they are to manage your financial affairs.
- Willing and able to take on the responsibility. Discuss the role with them beforehand and ensure they are comfortable.
- Someone who understands your wishes and values.
You can appoint one or more Attorneys. If appointing multiple, decide if they will act:
- Jointly: All Attorneys must agree on every decision.
- Jointly and Severally: They can act together or individually, offering more flexibility.
It’s highly advisable to also appoint substitute Attorneys. These individuals will step in if your primary Attorney(s) become unable or unwilling to act.
Step 2: Decide on the Powers You Want to Grant
Think carefully about the specific powers you wish to give your Attorney(s).
- Financial: Do you want them to manage all your bank accounts, pay bills, handle investments, buy/sell property, or deal with benefits? Do you want these powers to begin immediately or only upon your incapacity?
- Welfare: Do you want them to make decisions about your medical treatment (including life-sustaining treatment, if you choose to include this), where you live, your daily routine, or who visits you? Remember, welfare powers only come into effect if you lose capacity.
Your solicitor will help you detail these powers comprehensively and ensure the wording is legally sound.
Step 3: Engage a Qualified Glasgow Solicitor
While it’s technically possible to draft a PoA yourself, it is strongly, strongly recommended to use a solicitor in Glasgow. Here’s why they are essential:
- Legal Expertise: They ensure the document complies with the Adults with Incapacity (Scotland) Act 2000 and is legally valid.
- Tailored Document: They will draft a bespoke PoA that perfectly reflects your unique circumstances and wishes, preventing future ambiguities.
- Guidance: They can advise you on the implications of various decisions, such as appointing multiple Attorneys or substitute Attorneys.
- Capacity Assessment: Crucially, they facilitate the mandatory Certificate of Capacity (see Step 4).
- Error Prevention: They minimise the risk of mistakes that could invalidate your PoA.
Step 4: Obtain the Certificate of Capacity
This is a critical legal requirement in Scotland. The PoA document must include a certificate signed by one of the following:
- A solicitor registered to practice law in Scotland.
- A practising member of the Faculty of Advocates.
- A registered UK medical doctor who holds a license to practice.
This professional must interview you (the Granter) immediately before you sign the PoA document. Their role is to confirm that you:
- Understand the nature and effect of the Power of Attorney.
- Are aware of what you are doing.
- Are not acting under any undue influence.
Your solicitor will arrange this assessment as part of the process.
Step 5: Sign the Power of Attorney Document
Once the document is drafted and you have had your capacity certified, you (the Granter) must sign the Power of Attorney. While not a strict legal requirement for all PoAs, it’s good practice for your signature to be witnessed, ideally by someone who is not an Attorney.
Step 6: Register with the Office of the Public Guardian (OPG) in Scotland
For your Continuing (financial) and Welfare Powers of Attorney to be legally valid and actionable, they must be registered with the Office of the Public Guardian (OPG) in Falkirk. This involves:
- Completing an application for registration form (usually signed by the Attorney).
- Submitting the original Power of Attorney document.
- Including the Certificate of Capacity.
- Paying the registration fee. As of June 2025, this fee is £96 (always check the OPG website for the most current fee).
Your solicitor will typically handle this entire registration process for you. Once registered, the OPG will return the original PoA document to your solicitor along with a Certificate of Registration, confirming its legal validity.
Step 7: Store the Document Safely and Inform Your Attorneys
- Secure Storage: Keep the original registered PoA document in a safe place, such as with your solicitor or in a secure home safe.
- Inform Attorneys: Ensure your appointed Attorneys know about the PoA, where the original is stored, and what their responsibilities would entail if they need to act. Provide them with copies.
- Review: It’s wise to review your PoA every few years, or after significant life events (e.g., marriage, divorce, death of an Attorney, significant change in assets), to ensure it still reflects your wishes.
By following these steps with the guidance of a qualified Glasgow solicitor, you can ensure your Power of Attorney is a robust, legally sound document that provides invaluable security and peace of mind for your future.
