LPAs in Scotland

An LPA created in Scotland is different from created in England and Wales. In Scotland, a donor can make an LPA even after they lose mental capacity.

There are also different names for Lasting Powers of Attorney in Scotland – Continuing Power of Attorney, and Welfare Power of Attorney.  These were introduced under the Adults With Incapacity (Scotland) Act 2000. Continuing Power of Attorney relates to property and finances, and Welfare Power of Attorney covers personal welfare and medical care.

Both must be registered with the Office of the Public Guardian (Scotland) before they can be used (the same process as in England and Wales).

Like a property and financial affairs LPA, a Continuing Power of Attorney in Scotland can be used straight away after registration, when the donor still has capacity if the donor has given their consent for this to happen, or the attorney will have to wait until the donor has lost capacity. For example, as the donor, it may be easier for you to give your attorney the authority to – for instance – collect your state benefits if you have mobility issues, or to make payments on your behalf. Alternatively, you can stipulate that the attorney can act on your behalf only after you lose capacity.

A Welfare Power of Attorney in Scotland can only be used only when the donor loses mental capacity. The donor must sign the document in front of a ‘prescribed person’, such as a solicitor, a practising member of the Faculty of Advocates or a medical practitioner. The donor will then be interviewed, by a medical professional to make sure they haven’t been pressured to take out the document, and this interview will take place immediately prior to the signing of the Power of Attorney document. The interviewer must be certain that the donor is not acting under any influence and must be sure that there is no other reason which would prevent the document from being legal, so as part of the interview they will ensure the donor completely understands what powers they are signing over. Once they are satisfied that the donor wasn’t forced into signing the document, the interviewers will sign the incorporated certificate.