Power of Attorney and Guardianship

A Power of Attorney is a legal document whereby one person (the Grantor) appoints another person (the Attorney) to make decisions and act for them. Responsibilities can relate to property and financial affairs or welfare matters or both combined.

Anyone who has the mental capacity* can grant a Power of Attorney. Usually the Grantor must be over the age of 16. The Grantor must have full legal capacity to grant a Power of Attorney. This means that he/she must be capable of giving instructions to a solicitor and must understand the nature and extent of the powers that they are granting.

An Attorney can be anyone over the age of 16 who has the mental capacity*. Although a Grantor normally chooses a family member it can be anyone they trust implicitly. A Grantor may appoint more than one Attorney and can also appoint a Substitute Attorney to act in the event the original Attorney is no longer able to.
A Power of Attorney is a useful document to allow individuals to prepare for a time when they are unable to make decisions for themselves. They are quick and fairly easy to prepare and can be tailored to the needs of an individual. The Power of Attorney document has to be registered with the Office of the Public Guardian and cannot be used until such time as it has been registered.

A Power of Attorney is an ‘in life’ document and one of the ways it comes to an end is on the death of the Grantor. The wishes of the Grantor will then be determined by their Will.

*Mental capacity means the ability to use and understand information to make a decision, and communicate any decision made.

As mentioned above, a Grantor must have capacity to instruct a solicitor to draft a Power of Attorney on his/her behalf. If the Grantor has lost capacity, under the Adults with Incapacity (Scotland) Act 2000, anybody with an interest can apply to the Sheriff Court to be appointed as an individual’s Guardian to manage the finances and/or make decisions about the welfare of the incapable adult. The standard term for a guardianship appointment is 3 years. This procedure is far more complex and more time consuming than having a Power of Attorney document drawn up and the powers tend to be far more restrictive.

We provide comprehensive advice on both Powers of Attorney and Guardianships. We offer Legal Aid for both of these services if required.