McCormick & Nicholson Solicitors

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POWERS OF ATTORNEY

It is generally assumed in Scots law that adults (those over 16 years of age) are legally capable of making their own decisions about key aspects of their day-to-day life. This assumption can however be overturned on evidence of impaired capacity.

The Adults with Incapacity Act (Scotland) 2000 introduced a new regime for others to make financial and welfare decisions on behalf of those deemed incapable of making their own decisions.

There are now two categories of Powers of Attorney, firstly Welfare Powers of Attorney which regulate the personal welfare of the granter, which would include deciding on accommodation, medical treatment, dress, diet and personal appearance and the like. The Welfare Powers only come into force when the granter has lost capacity to decide these things for himself or herself. The second type of Power of Attorney is a Continuing Power of Attorney and this grants Power of Attorney to deal with financial affairs.

In order to grant a Power of Attorney it is a statutory requirement that when the Power of Attorney is created the granter is capable of understanding the nature of the powers he or she is conferring on his or her attorney(s). Often Solicitors are approached by family members or friends of someone who, for example, has been suffering from dementia and it is too late for the Powers of Attorney to be put in place as the granter has lost capacity. This can be very frustrating for family and friends.

The Power of Attorney is registered with the Public Guardian in Edinburgh who has responsibilities for supervision and investigation into the use of Powers of Attorney in the event of a complaint. Certain general principles apply in the use of Powers of Attorney which can be found in a Code of Practice issued by the Scottish Executive.

Please also see our Frequently Asked Questions (FAQs) Section for further information or contact us to discuss.