Choosing someone to act as your Power of Attorney is one of the most personal decisions you can make. You are effectively granting another person the authority to manage your financial affairs, or make decisions about your health and welfare, or both, if you become unable to do so yourself.

That is a significant responsibility, and the choice of who takes it on deserves careful thought. Under the legislation that governs Powers of Attorney in Scotland, there are both legal requirements and practical considerations that will guide you towards the right choice.

You can find out more about the different types of Power of Attorney in our article Continuing and Welfare Powers of Attorney: What’s the Difference?

What is the Legal Age Requirement?

The starting point is straightforward. To act as an attorney in Scotland, a person must be at least 16 years of age. In practice, however, the fact that someone is legally old enough to act does not necessarily make them the right choice. Most people will look to an adult who has some experience of managing their own financial affairs, or who is well placed to make considered decisions about personal welfare.

It is equally important that you, as the granter, have legal capacity at the time the document is signed. A Power of Attorney must be granted while you are capable of understanding what you are agreeing to. It cannot be put in place after capacity has already been lost, which is one of the reasons we strongly encourage people to attend to this while they are in good health and well before any question of incapacity arises.

Who Can Act as Your Attorney?

You can appoint almost any adult you trust. That might be a spouse or civil partner, an adult child, another family member, a close friend, or a professional such as a solicitor or accountant. The key qualities to look for are trustworthiness, reliability, and the practical ability to handle the responsibilities involved.

For a Continuing Power of Attorney (which covers financial matters), you may also appoint a corporate body, such as a trust company, to act on your behalf. This can be a useful option where no suitable individual is available, or where the financial affairs involved are complex enough to warrant professional management from the outset.

Are There People Who Should Not Act?

Yes. Scots law places specific restrictions on who may act as attorney, and there are also situations where appointing a particular individual, although not legally prohibited, would be unwise in practice.

In terms of legal restrictions, the most important is this: a person who is an undischarged bankrupt cannot act as attorney under a Continuing Power of Attorney. Given that these give the attorney authority over financial matters, including property and bank accounts, the law rightly prevents someone who has demonstrated an inability to manage their own financial affairs from managing yours.

A person who themselves lacks capacity cannot act as attorney. If your chosen attorney later loses capacity, the document will cease to operate in their hands, which is one reason why it can be sensible to name a substitute attorney at the outset.

Beyond the legal restrictions, there are situations where the appointment of a particular person, while technically permissible, raises concerns. These include:

• A person who has a significant conflict of interest with your affairs, for example someone with competing financial interests in your estate.
• For a Welfare Power of Attorney, your sole registered medical practitioner. There is an inherent tension between the role of treating clinician and that of welfare decision-maker, and it is generally advisable to keep these roles separate.
• Someone who is themselves elderly or in poor health, and who may not realistically be able to fulfil the role when the time comes.
• A person whose relationship with other family members is such that their appointment is likely to cause conflict, particularly in relation to welfare decisions.

Can I Appoint More Than One Attorney?

Yes, and this is something many people choose to do. You can appoint two or more attorneys to act together, and you have a choice about how they operate.

If they are appointed to act jointly, every decision requires the agreement of all attorneys. This provides an additional layer of oversight and can offer greater protection against the misuse of the power. The drawback is that it requires all attorneys to be available and in agreement, which may not always be practical.

If they are appointed to act jointly and severally, each attorney can act independently of the others. This is more flexible, particularly where practical day-to-day decisions need to be made quickly, but it does require a greater degree of trust in each individual attorney.

You can also appoint a substitute attorney, sometimes called a replacement attorney, who steps in automatically if your primary attorney is unable or unwilling to act. This is a sensible precaution and one we often recommend, particularly where your first choice is a spouse or partner of a similar age.

Does Distance Matter?

There is no legal requirement for your attorney to live close to you. However, geography can be a very real practical consideration, particularly for a Continuing Power of Attorney where managing financial affairs may require attending appointments, liaising with banks or other institutions, or dealing with property matters.

For a Welfare Power of Attorney, proximity can matter even more. Welfare decisions often need to be made quickly, and an attorney who is geographically distant may find it difficult to engage meaningfully with care providers or attend at short notice.

This is not to say that someone who lives at a distance cannot do a good job. Modern communication and online banking have made remote management far more feasible than it once was. But it is worth having an honest conversation with your proposed attorney about the practical demands the role might involve, particularly if their circumstances or location could make those demands difficult to meet.

A Decision Worth Taking Time Over

The choice of attorney is personal, and there is no single right answer. What matters is that you choose someone you trust completely, who is willing to take on the responsibility, and who is realistically able to fulfil the role when it is needed.

It is equally important that the Power of Attorney document itself is correctly drafted and registered with the Office of the Public Guardian (Scotland). A document that is unclear or imprecise may fail to deliver the protection you are seeking when it matters most.

We Can Help

At Paris Steele, we have extensive experience in drafting and registering Powers of Attorney for clients across East Lothian.

Our team will take the time to understand your individual circumstances. We will help you think through your choices carefully, so that the document reflects your wishes and gives those you trust the clear authority they need to act on your behalf.

For more information about our Power of Attorney service, or to arrange a free initial consultation, please contact us online or call us on 01620 892138.