For anyone in Glasgow considering a Power of Attorney (PoA), it’s crucial to understand that not all powers are the same. Scottish law, under the Adults with Incapacity (Scotland) Act 2000, distinctly separates the authority an Attorney can hold into two main categories: Welfare Powers of Attorney and Continuing Powers of Attorney.
While often granted together in a “Combined” PoA document, they serve fundamentally different purposes, activate under different conditions, and cover separate aspects of your life.1 Understanding these distinctions is key to creating a power of attorney Glasgow that truly reflects your wishes.
Continuing Power of Attorney (CPOA): Managing Your Finances and Property
A Continuing Power of Attorney (often referred to simply as a Financial PoA) grants your appointed Attorney the legal authority to manage your money, property, and general financial affairs.
What it Covers:
- Banking and Investments: This includes operating bank accounts, paying bills (utilities, mortgage, rent, credit cards, care home fees), managing savings, buying or selling shares and other investments, and collecting pensions or benefits.2
- Property Management: Dealing with property, which could involve arranging repairs, collecting rent from tenants, or even selling a house on your behalf if necessary (e.g., to fund care costs).3
- Tax Affairs: Handling your tax returns and correspondence with HMRC.
- Business Operations: If you are self-employed or own a business, it can include managing aspects of your business affairs.4
- Entering Contracts: Signing documents and entering into contracts on your behalf.
When it Takes Effect:
One of the key distinguishing features of a Continuing Power of Attorney is its flexibility regarding activation:
- Immediately: You can choose for the financial powers to take effect as soon as the PoA is registered with the Office of the Public Guardian (OPG), even while you still have full mental capacity. This can be beneficial for practical reasons, such as if you frequently travel, live abroad for extended periods, or simply want assistance with daily financial management.
- Upon Incapacity Only: Alternatively, you can specify that these powers should only become active if and when you lose the mental capacity to manage your own financial affairs. The PoA document should then clearly state how this incapacity is to be determined (e.g., by a medical professional).
Key Characteristic: It solely focuses on your financial and property matters, offering broad or specific authority as you deem fit.
Welfare Power of Attorney (WPA): Decisions About Your Person and Care
A Welfare Power of Attorney grants your appointed Attorney the authority to make decisions related to your personal welfare, health, and daily care.5
What it Covers:
- Medical Treatment: This is a significant aspect, allowing your Attorney to consent to or refuse specific medical treatments on your behalf, including potentially life-sustaining treatment (if you explicitly include such powers and comply with any relevant legal requirements).
- Daily Care: Decisions about your personal hygiene, diet, clothing, and leisure activities.
- Living Arrangements: Deciding where you should live, which could include remaining in your Glasgow home with support, moving into a residential care home, or transferring to a nursing facility.
- Access to Information: Gaining access to confidential medical and social care records to make informed decisions.
- Personal Contact: Making choices about who you see and interact with.
When it Takes Effect:
Unlike the financial PoA, Welfare powers have a strict activation condition:
- Only Upon Incapacity: Welfare powers can only be exercised by your Attorney if and when you lose the mental capacity to make these decisions for yourself.6 As long as you have the ability to understand and make a specific welfare decision, your own wishes and decisions take precedence. The Attorney cannot override your capacity.
Key Characteristic: It deals exclusively with your personal health and well-being, respecting your autonomy unless and until you are no longer able to make those decisions.
Side-by-Side Comparison:
| Feature | Continuing (Financial) PoA | Welfare PoA |
| Scope of Authority | Money, property, business, investments | Health, medical treatment, daily care, living arrangements |
| Activation | Can be immediate or upon incapacity | Only upon loss of mental capacity |
| Primary Purpose | Managing assets and financial obligations | Ensuring personal well-being and healthcare |
| Flexibility in Use | Can be used for convenience (if immediate) | Strictly for incapacity situations |
| Attorney Type | Individual or body (e.g., firm) | Only an individual |
| Bankruptcy Rule | Attorney cannot be bankrupt | Attorney can be bankrupt |
The Popular Choice: Combined Power of Attorney
For comprehensive planning, most individuals in Glasgow opt for a Combined Power of Attorney. This single document integrates both Continuing and Welfare powers.7 You can appoint the same Attorney(s) for both roles or nominate different individuals if you feel they have different strengths or areas of expertise. A Combined PoA offers a holistic solution, ensuring all aspects of your life are covered and streamlining the legal process.
The Role of a Glasgow Solicitor
Navigating the specifics of each type of PoA, especially the nuances of Scottish law, is best done with professional legal guidance. A Glasgow solicitor specialising in Private Client law will:
- Explain the differences clearly and help you choose the right type(s) for your needs.
- Draft the document accurately, ensuring all powers are correctly defined and legally enforceable.
- Facilitate the mandatory Certificate of Capacity, which verifies your understanding and willingness to grant the powers.8
- Handle the essential registration of your PoA with the Office of the Public Guardian, without which it has no legal standing.9
By understanding the distinct roles of Welfare and Continuing Powers of Attorney, and by seeking expert legal advice in Glasgow, you can create a robust and effective plan that safeguards your future, giving you and your loved ones invaluable peace of mind.
