Continuing and welfare powers of attorney—Scotland
Produced in partnership with Dorothy Kellas of Gilson Gray LLP
Continuing and welfare powers of attorney—Scotland

The following Private Client guidance note Produced in partnership with Dorothy Kellas of Gilson Gray LLP provides comprehensive and up to date legal information covering:

  • Continuing and welfare powers of attorney—Scotland
  • Why grant a power of attorney?
  • Who can be an attorney?
  • Practical issues relating to choice of attorney
  • How is an attorney appointed?
  • Taking instructions on a continuing and welfare power of attorney
  • When to register
  • Powers and duties of an attorney
  • Determination of incapacity
  • Registration, revocation and termination of a power of attorney
  • more

Why grant a power of attorney?

Until the coming into force of the Adults with Incapacity (Scotland) Act 2000 (AI(S)A 2000), it was the case that any powers granted by an adult in favour of their attorney would cease to be operable upon the adult becoming incapable.

AI(S)A 2000 introduced ‘continuing’ powers of attorney which continue to have effect after loss of capacity.

It is also possible to grant ‘welfare’ powers.

The clear benefit of this is that, provided the adult has capacity at the point of signing:

  1. the adult can choose the person or persons who will take decisions on their behalf

  2. the more costly and time-consuming routes which involve court processes can be avoided

See Practice Notes: Adults with Incapacity (Scotland) Act 2000, Welfare guardianships—Scotland and Financial and property guardianships—Scotland.

Who can be an attorney?

An attorney must be 16 or over, ie have legal capacity.

An attorney taking continuing powers may not be bankrupt.

It is possible to appoint joint attorneys in which case:

  1. any one attorney may be empowered to act alone, or

  2. all attorneys may be required to act together

It is possible to appoint a substitute attorney who can use the powers only if the principal attorney(s) fail(s).

Different attorneys may be appointed to deal with continuing and welfare powers.

Each attorney must agree to act:

  1. where written applications for registration

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