Independent Advocacy and Power of Attorney

Power of Attorney is a very powerful tool that you can use to control what happens in relation to your money, property and personal welfare in the event that you are not able to manage your affairs yourself. Independent Advocacy can help you with setting up a Power of Attorney: as an independent voice, we can provide you with information, and help you to examine your options and talk through possible scenarios and outcomes.

Independent Advocacy is not connected to any other organisation, and it is not connected to any members of your family or anyone else who might want to influence your decision-making: your Power of Attorney is about your future, and the decisions you make about who is granted powers and the extent of those powers should be for your own benefit and security. Independent Advocacy works for you, and we can support you to make the best possible choices using the best available information.

Power of Attorney

Power of Attorney is a legal process by which you (the Granter) can nominate a person (your Attorney) to have the authority to make decisions on your behalf about your personal welfare, or your money and property, or both. Within certain limitations, those decisions would have the same authority as if you had made them yourself.

There are two distinct types of Power of Attorney: Continuing Power of Attorney, which deals with money and property; and Welfare Power of Attorney, which deals with your personal welfare and circumstances.

Continuing Power of Attorney can be set up in two ways: to come into operation immediately upon signing, so that the Attorney can make decisions about money and property from the outset; or to come into operation in the event that the Granter loses capacity to make decisions. Regardless of whether the Granter has capacity or not, the powers will be restricted to what is set out in the Power of Attorney document.

Welfare Power of Attorney allows the Attorney to make decisions about things like housing, care and support issues and medical treatment. Welfare Power of Attorney only comes into operation in the event that the Granter is judged to have lost capacity.

Power of Attorney is a bit like an insurance policy: you must set it up before you need it. Part of the process involves obtaining a certificate which states that the Granter has capacity to make, understand, communicate, act on and remember decisions. If someone lacks the capacity to make decisions, they cannot set up a Power of Attorney.

Under those circumstances, an application for Guardianship under the Adults with Incapacity Act (2000) might be considered. Guardianship is a very long, complicated and expensive process, and involves making applications and appearances at the Sheriff Court. Granting Power of Attorney, by contrast, is comparatively quick, cheap and simple to do.

You can find out more about capacity and incapacity on the Adults with Incapacity page.

Setting up Power of Attorney:

As granting a Power of Attorney is a legal process, many people prefer to user the services of a solicitor to draw up a Power of Attorney for them, but you do not have to do so. If you are on a budget, you can write your own Power of Attorney document, and templates are available from the Office of the Public Guardian (Scotland) website.

If you prefer to use a solicitor to set up Power of Attorney, it is best to get quotes from a number of solicitors before deciding who to use as fees can vary by quite a margin. There is a list of local solicitors as a factsheet on our Downloads page.

Setting up a Power of Attorney requires three things:

A document which the Granter writes, stating who they want to be their Attorney and what powers they want them to have

A certificate of capacity, which has to be signed by a practising lawyer or health professional

A registration form so that the Power of Attorney is recorded as a legally binding document.

In Scotland, a Power of Attorney is registered with the Office of the Public Guardian (Scotland), where it remains in force unless the Granter revokes it in writing, or passes away. There is a fee to register a Power of Attorney, currently that fee is £73. If you register a Continuing Power of Attorney, the fee is £73. If you register a Welfare Power of Attorney, the fee is £73. If you register both at the same time, the fee is still £73, so it makes sound financial sense to do both at once.

Financial decisions made by the Continuing Attorney are subject to scrutiny by the Office of the Public Guardian. Welfare decisions made by the Welfare Attorney are subject to scrutiny by the local authority, normally the Social Work Department.