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Continuing power of attorney

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Continuing power of attorney

A continuing power of attorney is used to give another person, called your 'attorney', the power to act on your behalf and in your name in respect of your financial affairs. A continuing power of attorney is different from a general power of attorney, in that this document can continue to be used even if in the future you no longer have the capacity to look after your own affairs.

A continuing power of attorney is only appropriate for use in Scotland. If you need a document for use in England & Wales or Northern Ireland, read our article on Choosing a power of attorney or our article on Northern Ireland Choosing a power of attorney, as appropriate, to find out which document to use.

What powers your attorney will have

The continuing power of attorney will give your attorney a general power over your financial affairs, as well as particular powers, such as the following:

  • Collecting pensions and other money due to you
  • Dealing with bank or building society accounts
  • Having access to financial information from your bank and other financial bodies
  • Buying and selling investments and other property, including houses
  • Signing documents and entering contracts
  • Bringing or defending legal actions, for example, in the case of an accident
  • Making gifts
When the power comes into effect

Springing clause

You can authorise your attorney to act for you whilst you are still able. You might want to do this for convenience. Alternatively, you can specify in your document that your attorney can only make use of the powers when one or more doctors certify that you are no longer capable of managing your own affairs. This is known as a springing clause and is designed to provide extra protection to you in the event of you becoming frail but not incapacitated and ensures that your ability to manage your affairs will not be taken from you by an over-enthusiastic attorney. Springing clauses also support your attorney, who may find it hard to decide whether or not he or she should take over particular tasks.

Registration

Continuing powers of attorney must be registered with the Office of the Public Guardian in Scotland in order for them to be effective. You must complete a registration form and send it, together with your completed continuing 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: Public Guardian in Scotland.

The Public Guardian issues a certificate of registration, which the attorney may subsequently need to use to confirm that they are validly exercising their powers. If you have chosen to include a 'springing clause' so that your continuing power of attorney will only be effective in the event that you no longer have capacity to manage your affairs, you should still register your continuing power of attorney with the Public Guardian so that a valid and effective document is in place and available for use by your attorney, if and when required in the future. 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 £65, payable to The Scottish Court Service, for registering a power of attorney which must be enclosed when you send the registration form and your completed continuing power of attorney 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 power of attorney is registered.

Welfare powers of attorney

In addition to a continuing power of attorney, it is possible to have another type of power of attorney document in place, called a welfare power of attorney. This document gives your attorney the power to look after your personal welfare. This means that your attorney will have the power to do such things as consent to medical treatment on your behalf or decide where you should live.

As there is a close connection between making financial and welfare decisions, you may want to create both of these powers (continuing and welfare) at the same time. You can do this by creating these powers separately or in one combined continuing and welfare power of attorney, if you would prefer.

Further information

If you need any further information, you should consult the Public Guardian's Office in Scotland by visiting the Public Guardian's website.