For Glasgow residents, establishing a Power of Attorney (PoA) is a vital step in comprehensive future planning. However, for a PoA to be legally robust and effective in Scotland, it must adhere to specific requirements laid out primarily in the Adults with Incapacity (Scotland) Act 2000. Understanding these legalities is paramount to ensuring your wishes are genuinely upheld.
Here’s a breakdown of the key legal requirements for power of attorney Glasgow , Scotland:
1. Granter’s Mental Capacity
- Requirement: The person making the Power of Attorney (the “Granter”) must have the mental capacity to understand the nature and effect of the document at the time they sign it. This means they must comprehend what a PoA is, who they are appointing, what powers they are granting, and the implications of those powers.
- Why it’s crucial: If capacity is lacking when the PoA is signed, the document will be invalid. This is why acting early, while you are in good health, is fundamental.
2. Written Document (Deed)
- Requirement: The Power of Attorney must be in the form of a written document (a “deed”).
- Content: The document must clearly state:
- The full name and address of the Granter.
- The full name(s) and address(es) of the appointed Attorney(s) and any substitute Attorney(s).
- Whether the powers granted are Continuing (financial/property), Welfare (personal/health), or a combination of both.
- The specific powers being granted. These should be sufficiently detailed to cover all areas you intend, but also broad enough to provide flexibility for your Attorney.
- For Continuing Powers that are to take effect only on incapacity, or for Welfare Powers, the document should include a statement confirming the Granter has considered how their incapacity is to be determined.
3. Granter’s Subscription (Signature)
- Requirement: The Granter must subscribe (sign) the Power of Attorney document.
- Witnessing (Recommended): While the Adults with Incapacity (Scotland) Act 2000 does not strictly mandate a witness for the Granter’s signature for the PoA to be self-proving after registration, it is highly recommended legal practice to have the Granter’s signature witnessed by an independent adult (over 18) who is not an appointed Attorney in the document. This adds an extra layer of proof of proper execution.
4. Certificate of Capacity
- Requirement: This is a mandatory and critical legal requirement in Scotland. The Power of Attorney document must incorporate a certificate in a prescribed form.
- Who can provide it: The certificate must be signed by one of the following:
- A practising solicitor registered to practice law in Scotland.
- A practising member of the Faculty of Advocates.
- A registered UK medical doctor who holds a licence to practice.
- The Certifier’s Role: The professional signing the certificate must:
- Have interviewed the Granter immediately before the Granter signed the document.
- Be satisfied, either through their own knowledge or by consulting another person, that the Granter understands the nature and extent of the PoA at the time of signing.
- Have no reason to believe the Granter is acting under undue influence or that any other factor vitiates the granting of the power.
- Independence: The person providing the Certificate of Capacity cannot be an appointed Attorney in the document.
5. Attorney’s Eligibility
- Age: Any appointed Attorney must be over 16 years old.
- Bankruptcy (for financial powers): An individual who is currently declared bankrupt (or whose estate has been sequestrated, or who has granted a protected trust deed) cannot be appointed or act as a Continuing (financial) Attorney. This restriction does not apply to Welfare Attorneys.
- Willingness to Act: While not always a formal signing requirement on the deed itself, the Attorney must be willing and able to take on the responsibilities. The OPG registration form will require the Attorney to sign to confirm their acceptance.
6. Registration with the Office of the Public Guardian (OPG)
- Requirement: For a Power of Attorney (whether Continuing, Welfare, or Combined) to be legally effective and actionable in Scotland, it must be registered with the Office of the Public Guardian (OPG) in Falkirk.
- Documents for Registration: The following documents must be submitted to the OPG:
- The original Power of Attorney document (which includes the Certificate of Capacity).
- A completed registration form (usually signed by the Attorney/s).
- The prescribed registration fee (£96 as of June 2025 – always check the current fee on the OPG website).
- Effect of Registration: Once registered, the OPG adds the details to a public register and issues a Certificate of Registration, confirming the PoA’s validity. An unregistered PoA has no legal standing.
7. Attorney’s Duties (Once Acting)
While not a requirement for setting up the PoA, Scottish law also imposes specific duties on Attorneys once they begin to act, particularly if the Granter has lost capacity. These duties are rooted in the principles of the Adults with Incapacity (Scotland) Act 2000:
- Benefit the adult: Any action must be for the adult’s benefit.
- Least restrictive option: Actions should be the minimum necessary to achieve the purpose, restricting the adult’s freedom as little as possible.
- Take account of the adult’s wishes: Current and past wishes and feelings must be considered.
- Consult relevant others: Views of carers, relatives, and other interested parties should be taken into account.
- Encourage skills: The adult should be encouraged to use and develop their own decision-making skills as much as possible.
- Maintain Records: Financial Attorneys, in particular, are required to keep proper records of their dealings.
The Role of a Glasgow Solicitor
Navigating these legal requirements can be complex. For Glasgow residents, engaging a solicitor specializing in Private Client law is highly advisable. They will ensure every legal requirement is met, from drafting the tailored document and arranging the Certificate of Capacity to managing the crucial OPG registration, providing invaluable peace of mind and ensuring your future is robustly protected.
