Unlike a Power of Attorney England Scotland has different types of Powers of Attorney which are mostly similar to their England counter parts.
Continuing Power of Attorney
A Continuing Power of Attorney is akin to England’s Lasting Power of Attorney for Financial Affairs. It grants your “attorney” power to act in respect to your Financial Affairs and can be continued to be used even after you (the donor) has lost mental capacity, unlike with a General Power of Attorney.
What powers does a Continuing Power of Attorney grant?
A Continuing Power of Attorney will grant your Attorney(s) the power to:
- Collecting pensions and other money due to you
- Dealing with bank or building society accounts
- Having access to financial information from your bank and other financial bodies
- Buying and selling investments and other property, including houses
- Signing documents and entering contracts
- Bringing or defending legal actions, for example, in the case of an accident
- Making gifts
When does a Continuing Power of Attorney come into effect?
You can authorise your attorney(s) to act for you while you still have capacity to make your own decisions. You might want to do this for convenience.
Alternatively you can specify a “springing clause” in your document which means when one or more doctors certify you are no longer able to manage your own affairs then your attorneys can use the powers appointed by the document. It should be registered by your attorneys if you have lost capacity and have not already done so.
Welfare Power of attorney
A Welfare Power of Attorney is akin to A Lasting Power of Attorney Health & Welfare, this gives your attorney(s) power to look after your personal welfare.
This can mean things like consent to medical treatment on your behalf or decide where you should live.
What powers does a Welfare Power of Attorney grant?
Your welfare attorney will have the power to: (not an exhaustive list):
- Decide on Care Arrangement on your behalf including where you live
- They will gain access to confidential or personal information about your welfare, such as health records
- Making medical treatment decisions including giving (or denying) consent to medical treatment on your behalf and giving (or denying) permission on your behalf to participate in medical research.
- Making decisions on your clothes, personal appearance, diet, leisure activities or holidays
When does a Welfare Power of Attorney come into effect?
Your Welfare Power of Attorney will be “activated” when one or more doctors have certified that you no longer have the capacity to do so yourself. So you should make it while you still have capacity. At this point it should be registered with the OPG.
Continuing and Welfare Power of Attorney
As losing the capacity may require you to need help in both your financial and welfare, it is possible to make a joint Continuing Welfare and Power of Attorney which combines the two documents mentioned above into one document.
Like the above documents the financial section can come in to effect via a “springing clause”, however the welfare section will come into effect once one or more doctors have certified you no longer have capacity.
Registration
Even if you have a “springing clause” you should register your Continuing Power of Attorney and Welfare Power of Attorney as soon as possible, if you don’t your Attorneys will have to register it when you are incapacitated and this will take time and may result in difficult situations.
Once you send the registration form to the Office of the Public Guardian with the relevant fee they will issue a certificate of registration, which will confirm that your Attorneys are validly exercising their powers.