If some day you are no longer able to look after your own affairs, a continuing and welfare power of attorney will give that power to another person (called your attorney). Once the power comes into effect, your attorney will have legal authority to act on your behalf in all financial and personal welfare matters. Your attorney can manage your financial affairs as soon as the continuing and welfare power of attorney becomes effective. Your attorney cannot exercise the power to manage matters related to your personal welfare unless you become incapable.
The continuing and welfare power of attorney is only appropriate for use in Scotland. For advice on other UK jurisdictions, read our article on England and Walesor our article on Northern Ireland , as appropriate.
Ais a document which is designed for use over a limited time. It cannot be used if the granter, i.e. the person giving the power of attorney to another person, loses capacity to act for themselves. This is ideal, for example, where a person is going to be out of the country for a certain amount of time and they only need someone to manage their affairs whilst they are gone.
A continuing and welfare power of attorney is different in that this document is designed to continue to be effective even after a person loses capacity to act for themselves. This may be because of an accident or dementia. The powers granted under a general power of attorney cease when a person loses capacity and a continuing power must be used instead.
For more information, see our '' section.
The continuing and welfare power of attorney has two main functions. Firstly, it gives your attorney general power over your financial affairs. Secondly, it gives your attorney general power over your personal welfare if you become incapable of managing your own affairs.
The financial powers included in this document can be given to your attorney immediately after signing, or if you specify otherwise (see our '' section), only when one or more doctors certify that you have become incapable of managing your own affairs. The welfare powers included in this document, i.e. to manage your health and social care needs, will only come into effect when one or more doctors certify that you are incapable of doing so yourself.
The continuing and welfare power of attorney will need to be registered by the Public Guardian's Office in Scotland before it can be brought into effect.
You must complete a registration form and send it, together with your completed continuing and welfare power of attorney and the Public Guardian's Fee, to the Public Guardian's Office. The registration form can be accessed on the Public Guardian's Office website. You can access the Public Guardian's Office using the following link:.
The Public Guardian issues a certificate of registration, which the attorney may need to use to confirm that they are validly exercising their powers. You should always register your continuing and welfare power of attorney as soon as possible after creating it, even if you have chosen to apply a 'springing clause' to the financial powers, so that the financial and welfare powers in your continuing and welfare power of attorney will only be effective once you no longer have capacity to manage your affairs. If you don't register it, your attorney will have to do so once you become incapacitated. This will take time and leave you in the undesirable situation of being incapacitated without anyone to look after your affairs while your attorney is busy with the process of registration, which can take some time.
There is a fee of £70, payable to the 'Scottish Court Service', for registering a power of attorney which must be enclosed with your completed continuing and welfare power of attorney and the registration form is sent to the Public Guardian's Office. The Public Guardian has a duty to inform you, by sending a copy of the document, when the continuing and welfare power of attorney is registered.
If you need any further information, you should consult the Public Guardian's Office in Scotland by visiting the.