In Scotland, adults (people aged 16 or over) can make their own decisions about their life, health or care. This is known as mental capacity.
Capacity means being able to understand information about a decision. It also means understanding what might happen if you make that decision or choose not to.
If you’re not able to take part in a decision, your healthcare team will involve anyone who has legal decision-making powers for you.
You can give someone the legal power to make decisions for you by setting up a power of attorney. If you haven’t done this and lose mental capacity, a court order (like a guardianship or an intervention order) will be needed.
Power of attorney
A power of attorney is a formal, legal document. It gives someone you trust the authority to make decisions for you.
The people you appoint are called your ‘attorneys’. It’s better to choose more than one person in case their health or situation change.
A power of attorney is important if you’re not able to make all the decisions about your health and care yourself. It’s also useful if you need support to manage things like your money or home.
You can only complete a power of attorney while you have mental capacity to make decisions about it.
Types of power of attorney
There are different types of power of attorney. These are a:
- continuing power of attorney – attorneys can deal with your money and/or property
- welfare power of attorney – attorneys can make decisions around your health or personal welfare
- combined power of attorney – attorneys have continuing and welfare powers
When should you set up a power of attorney?
If you’re over 16 and want someone to be able to make decisions on your behalf, you must have a power of attorney in place.
You can set up a power of attorney at any point in your life. It’s important to have this in place while you have capacity. You don’t need to wait until you become unwell or are diagnosed with a specific condition.
You may choose to set up a power of attorney if your health is likely to decline. For example, after a diagnosis like dementia, a stroke, Parkinson’s disease or another condition that could affect your ability to make decisions.
Benefits of having a power of attorney
Having a power of attorney can help because:
- you choose who’ll make decisions for you
- it’s quicker to arrange than a guardianship or intervention order
- it’s usually less expensive than a guardianship or intervention order
- it can be put in place early, before there’s a crisis
- it can make things easier for your family and avoid delays later on
- it gives you more control over what happens if you become unwell
- it can cover decisions about your money, property, health and care
- it may reduce the need for court involvement in the future
- it can provide peace of mind for you and your loved ones
Making a power of attorney
If you’re thinking about making a power of attorney, you could:
- talk about it with people you trust
- find out more by asking your doctor, nurse or social worker, or by contacting a solicitor
- decide which people you’ll choose to be your attorneys
- decide what you want your attorneys to be able to do for you
It can take time to set up a power of attorney, so it’s best to do this as early as possible.
If you need to arrange one more quickly, you can get help from:
- a solicitor (family law and relationships), who can guide you through the process
- the Office of the Public Guardian (Scotland), which provides information on how to register power of attorney in urgent cases
- advice services like Citizens Advice Scotland
When you’re ready, your power of attorney must be written and certified. This means a professional confirms that you understand the decision and know what you’re doing. A Scottish solicitor or a UK‑registered doctor can do this.
Power of attorney documents are registered with the Office of the Public Guardian Scotland.
Find out more about setting up a power of attorney
When does a power of attorney come into place?
In Scotland, a continuing power of attorney can usually be used as soon as it’s registered. The attorney doesn’t normally need to wait until the adult loses capacity, unless the document says otherwise.
In Scotland, a welfare power of attorney can only be used when the adult lacks capacity to make their own welfare or healthcare decisions.
A combined continuing and welfare power of attorney contains both financial and welfare powers. The financial powers will usually take effect when the power of attorney is registered, unless the document says otherwise. The welfare powers can only be used when the adult is unable to make the relevant welfare decision for themselves.
Can a non-Scottish power of attorney document be used in Scotland?
A non-Scottish power of attorney can be used in Scotland. However, an organisation like a bank may not accept it.
In this kind of situation, you can get a certificate from the Office of the Public Guardian (Scotland). This certificate recognises foreign power of attorneys in Scotland.
The certificate can be presented along with the power of attorney to organisations. This can help get a non-Scottish power of attorney accepted in Scotland.
The Office of the Public Guardian has more information about this certificate.
Financial support
You may be eligible for financial help with the costs involved with getting legal advice or other assistance from a solicitor.
The Scottish Legal Aid Board administers the legal aid system. There is information on their website about legal aid in Scotland, including the types of legal aid that can be available and when you may be able to get help.
There are also information leaflets on the different types of aid available and online tools you can use, including financial eligibility estimators and a ‘Find a solicitor’ service.
The Office of the Public Guardian charges fees, including to register a power of attorney document, but you may be entitled to apply for an exemption.
Guardianship and intervention orders
If you can no longer make decisions yourself, but you don’t have a power of attorney in place, no one has an automatic right to make decisions on your behalf. This means someone will have to go to court for a guardianship or intervention order before they can act on your behalf.
What is a guardianship order?
A guardianship order means someone has been appointed by the court to make decisions for you. They can make decisions on your:
- welfare – have powers relating to your care and treatment
- finances – have powers relating to your finances and property
- finances and welfare – have a combination of financial and welfare powers
A guardianship order can only be put in place if a person lacks capacity. This means they’re not able to make decisions about their health, care or finances themselves. This is different from a power of attorney, which can be set up in advance.
To become a guardian, you must apply to the court. The court will decide if this is needed and if you’re the right person for the role.
Because of this, getting a guardianship order can take time and it may take longer than setting up a power of attorney.
Find out more about a guardianship order
What is an intervention order?
An intervention order is when a court allows someone to make a one‑off decision for a person who can’t make that decision themselves. This decision is limited to a specific action or situation and is usually for a set period of time.
For example, an intervention order might be used to:
- sell a house
- access money for a specific purpose
- make a particular decision about care or treatment.
The application process for an intervention order is similar to a guardianship application and involves going to court. However, it’s usually simpler because it’s for a one‑off decision rather than ongoing powers.
Find out more about an intervention order
Getting a guardianship or intervention order
You can get legal advice about guardianship or intervention orders from a solicitor or legal advisor. This is important as getting these orders can be:
- a complicated process
- take a lot of time
- be very expensive
- stressful
Financial support
The cost for getting a guardianship order can vary. It’s recommended that you take legal advice from a solicitor.
Civil legal aid may be available in relation to applications for guardianship or intervention orders. Eligibility will be based on the adult’s income and assets and not the person seeking to be appointed as their guardian.
You can find out more about legal aid and eligibility on the mygov.scot website, the Scottish Legal Aid Board’s website (including financial eligibility estimators and a ‘Find a solicitor’ service) or by consulting a solicitor.
The Office of the Public Guardian charges fees for some services they provide in relation to guardianship orders or intervention orders, including registration, but you may be entitled to apply for an exemption.