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Power of Attorney in Scotland: What You Need to Know

Power of attorney is one of the most important legal documents you can put in place – and one that most people leave far too late. This plain-English guide explains how power of attorney works in Scotland, the two types available, what it costs, and how to get one set up. It is written for Scottish families who want clear answers without the legal jargon.

While you are thinking about the future, it is worth getting your will sorted too. You can make a Scottish will online here for a fixed fee.

Contents

  1. What is a power of attorney?
  2. The two types of power of attorney in Scotland
  3. Who can be your attorney?
  4. How to set up power of attorney in Scotland
  5. How much does power of attorney cost in Scotland?
  6. Power of attorney vs a will – what is the difference?
  7. Quick FAQs about power of attorney in Scotland

1. What is a power of attorney?

A power of attorney is a legal document that lets you choose someone you trust to make decisions on your behalf. That person is called your attorney (sometimes called a “donee”).

The key point is this: you set it up while you still have mental capacity – the ability to understand and make your own decisions. If you wait until you have lost capacity, it is too late. At that stage, your family would need to apply to the court for a guardianship order, which is slower, more expensive, and more stressful for everyone.

Under Scots law, a power of attorney is governed by the Adults with Incapacity (Scotland) Act 2000. It is a Scottish-specific process, and the rules differ from those in England and Wales.

2. The two types of power of attorney in Scotland

In Scotland, there are two distinct types of power of attorney. Most people choose to set up both at the same time.

  • Continuing power of attorney (financial): this covers your money, property, and financial affairs. Your attorney can pay bills, manage bank accounts, sell property, and handle investments on your behalf. It can be used while you still have capacity (if you choose) or only if you lose it
  • Welfare power of attorney (health and care): this covers decisions about your health, medical treatment, and personal care. Your attorney can decide where you live, what care you receive, and consent to or refuse medical treatment. A welfare power of attorney can only be used if you have lost the capacity to make these decisions yourself

You can appoint the same person for both, or choose different people. Many Scottish families appoint their spouse or partner for both, with an adult child as a substitute.

3. Who can be your attorney?

Your attorney must be at least 16 years old and must have mental capacity themselves. Beyond that, you have a free choice. Most people choose:

  • A spouse or partner
  • An adult son or daughter
  • A close family member or trusted friend
  • A solicitor or other professional (usually for the financial side)

You can appoint more than one attorney, and you can specify whether they must act together (jointly) or can act independently (jointly and severally). It is also sensible to name a substitute attorney in case your first choice is unable or unwilling to act when the time comes.

Choose someone you trust completely. Your attorney will have significant power over your affairs, so this is not a decision to take lightly.

4. How to set up power of attorney in Scotland

Setting up a power of attorney in Scotland involves a few clear steps:

  1. Decide what powers you want to grant – continuing (financial), welfare, or both
  2. Choose your attorney(s) – and any substitutes
  3. Have the document drafted – most people use a solicitor for this, as the wording needs to be legally precise
  4. The document must include a certificate from a solicitor or registered medical practitioner confirming that you understand what you are signing and are not acting under undue pressure
  5. Sign the document in the presence of a witness
  6. Register it with the Office of the Public Guardian (Scotland) – a power of attorney is not valid until it has been registered. The OPG checks the document and adds it to their register

Registration typically takes a few weeks. Once registered, your attorney can act within the powers you have granted.

It is worth noting that you cannot set up a power of attorney using a DIY template in the same way you might with a will. The legal requirement for a solicitor or doctor certificate means professional involvement is almost always needed.

5. How much does power of attorney cost in Scotland?

The costs for setting up a power of attorney in Scotland break down into two parts:

  • Solicitor fees: typically £300–£500 per type of power of attorney. If you are setting up both a continuing and a welfare power of attorney, expect to pay £500–£800 in total. Some solicitors offer a combined package
  • Registration fee: the Office of the Public Guardian charges £82 to register each power of attorney. So if you register both types, that is £164

In total, most Scottish families pay somewhere between £600 and £1,000 to get both types of power of attorney drafted, signed, and registered.

It is not cheap – but it is far less than the cost of a guardianship application through the courts, which can run to several thousand pounds and take months.

6. Power of attorney vs a will – what is the difference?

These two documents do very different jobs, but they work together.

  • A power of attorney is for while you are alive. It covers what happens if you lose the ability to manage your own affairs
  • A will is for after you die. It sets out who inherits your estate and who handles the administration (your executors)

A power of attorney ends when you die. A will only takes effect when you die. Neither one replaces the other.

For most Scottish families, having both in place is the sensible approach. If you are already thinking about what happens if you become unwell or incapacitated, it makes sense to sort your will at the same time. The two conversations go hand in hand.

Quick FAQs about power of attorney in Scotland

Can I set up a power of attorney online in Scotland?

Not entirely. The document requires a certificate from a solicitor or registered medical practitioner, so you will need some professional involvement. Some solicitors offer remote consultations for the initial discussion, but the certification and signing usually happen in person.

What happens if I lose capacity and do not have a power of attorney?

Your family would need to apply to the sheriff court for a guardianship order under the Adults with Incapacity (Scotland) Act 2000. This is more expensive (often £3,000–£5,000+), takes longer (several months), and requires ongoing supervision by the court.

Can I cancel a power of attorney once it is set up?

Yes, as long as you still have mental capacity. You can revoke a power of attorney at any time by notifying the Office of the Public Guardian in writing. If you have already lost capacity, the power of attorney cannot be revoked by you.

Does ScottishWill offer power of attorney services?

No. ScottishWill specialises in Scottish wills only. For power of attorney, it is best to speak to a Scottish solicitor who can draft the documents and provide the required certificate. Many solicitors will handle your will and power of attorney together if you ask.

Is power of attorney the same across the UK?

No. Scotland has its own system under the Adults with Incapacity (Scotland) Act 2000. England and Wales use “Lasting Power of Attorney” (LPA), which is a different process with different rules. If you live in Scotland, you need a Scottish power of attorney – an English LPA will not cover you.

While you are thinking ahead – is your will sorted?

ScottishWill does not offer power of attorney – for that, a solicitor is the right choice. But if sorting your power of attorney has got you thinking about the future, it is worth making sure your will is in order too.

If your situation is reasonably straightforward, you can start your Scottish will online here. A single will is £99 and mirror wills for couples are £149. The process takes around ten minutes, and your completed Will Pack is emailed to you within two business days.

If you have any questions at all, you can contact us – we are here to help.