At Hastings Legal we prefer plain speak
but legal documents need to use terms that are clearly defined in law.
Here are the main ones that you will come across when you are granting Powers of Attorney for yourself or are trying to explain what Powers of Attorney are to someone else.
The information and terminology here applies Scots Law.
A statement that instructs healthcare professionals on the type of care or treatment an individual wants or does not want if they are unable to communicate their wishes.
Along with Advance Statements Advance Directives are often known as ‘Living Wills’. They are not legally enforceable in Scotland but as a rule your medical professionals respect their instructions where possible when they are deciding on your treatment. See our ‘Living Wills’ section for more information.
Information set down with an individual’s medical records informing healthcare professionals of the kind of treatment they want or do not want should they become terminally ill.
The person appointed to make decisions on behalf of the individual about either their health and welfare or property and financial affairs (or both).
The person who is qualified and able to complete the Certificate which is an essential part of the registration procedure and will be checked by the Public Guardian on an application for registration. This is part of the Continuing Power of Attorney form. The Certificate Provider must confirm that the granter understands the CPA and is not under any pressure to create the document. The Certificate Provider will generally be the solicitor attending on the Granter having read through and explained the Document and its effect.
Combined Power of Attorney
Granters may set up a combined Power of Attorney which takes both sets of powers (Continuing and Welfare) and puts them in the one deed. Generally if done at the same time there is no extra charge.
Continuing Power of Attorney (CPA)
This allows you to appoint someone to look after your property and financial affairs and could include the powers to manage bank accounts or sell a house. The term ‘continuing’ means that the POA continues past the point of your incapacity.
Continuing Powers of Attorney are not only for the elderly. Anyone can be struck by accident or sudden critcal illness. If you take part in adventure sports or activities you may wish to set up a Continuing Power of Attorney and possibly also an Advance Directive or so-called ‘Living Will’.
Continuing and Welfare Power of Attorney
Both types of Powers in a single document. Often referred to as a Combined Power of Attorney.
This is an English term. See ‘Guardian’ for the Scottish equivalent.
This is an English term. The Scottish term is Granter
General Power of Attorney
An arrangement to appoint an attorney for a limited period of time. You may wish to grant a General Power of Attorney if you are travelling abroad for some time and you need someone to manage your affairs and pay the bills. You can grant Power of Attorney to a trusted relative or friend or to your solicitor.
You are the Granter when you create your Power of Attorney. Only you can decide what happens with your welfare and finances and only you can grant permission to another person to make those decisions on your behalf at a time in the future should you not be able to make such decisions for yourself.
The Guardian is appointed by the local Sheriff Court. In England a Guardian is called a Deputy
Lasting Power of Attorney
This is an English term. The Scottish legal term is Continuing Power of Attorney.
A Living Will or Advance Directive is used to advise your friends, family and medical professionals of your wishes about your health care if you become seriously ill and lose the capacity to make decisions or communicate. It is also sometimes called an advance statement or an advance decision.
Someone chosen by the granter to be notified when an application is made to register their Power of Attorney.
Office of the Public Guardian
An agency of the Scottish Court Service with a statutory responsibility to supervise people appointed by the court to make financial or property decisions on behalf of an incapable adult such as accessing an agreed amount of an incapable adult’s funds to pay for their day to day needs. In their supervisory function they register continuing and/or welfare powers of attorney under the terms of the Adults with Incapacity (Scotland) Act 2000.
Within a Continuing or Combined Power of Attorney the financial powers CAN (but don’t necessarily) become active as soon as the Deed is registered with the Office of the Public Guardian. If you would wish for the financial powers to be suspended until such time as you might lose mental capacity we can include a ‘Springing Clause’ which does just that. The welfare powers can only ever become active if the Granter has lost mental capacity. In practical terms this is usually a matter for a doctor to decide although you can stipulate your preference and instructions in an Advance Directive or Living Will
Welfare Power of Attorney (WPA)
This allows an attorney to make decisions about someone’s health and welfare but only if they are
1) unable to make decisions about their health and personal welfare for themselves and
2) after the CPA is registered with the Office of the Public Guardian. No-one can make decisions about someone’s welfare while they have the ability to do this for themselves.
Someone who signs a Power of Attorney form to confirm they have witnessed the donor or the attorney signing and dating the Power of Attorney.
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