How do you get Power of Attorney?
The answer depends on where you live. Scotland and England & Wales each have their own legal framework, their own documents, and their own costs, even though the underlying idea is the same: choosing someone you trust to make decisions for you if you ever cannot make them yourself. As a dual-qualified firm, Jones Whyte sets these up in both jurisdictions, so this guide covers both, side by side.
DON'T WAIT UNTIL IT'S TOO LATE
Most people only think about Power of Attorney once it becomes urgent, after an illness or accident, when it is often too late. It is one of the simplest and most valuable pieces of legal planning you can put in place, at any age over 16 (Scotland) or 18 (England & Wales). Without one, your family cannot simply step in when you lack mental capacity or lose it altogether. Instead, they must apply to a court for the legal authority to act, a process that is slower, more expensive and more intrusive than arranging Power of Attorney in advance, in either jurisdiction.
Power of Attorney in Scotland
Governed by the Adults with Incapacity (Scotland) Act 2000. The document is called a Power of Attorney and comes in two types: Continuing (financial) and Welfare. It is registered with the Office of the Public Guardian (Scotland).
The two types of POAs
A Continuing Power of Attorney covers your property and financial affairs, such as paying bills, managing bank accounts, dealing with your pension, or selling a property. You can choose for it to take effect immediately, even while you still have full capacity, or only once you lose capacity.
A Welfare Power of Attorney covers health and care decisions, medical treatment and personal care, and can only be used once you have lost the capacity to make those decisions yourself.
Many solicitors, including Jones Whyte, will draft continuing and welfare powers into a single combined document. Only one document then needs to be registered, which can reduce the registration fee compared with preparing two separate documents.
Choosing your attorney or attorney
Anyone aged 16 or over that you trust can be your attorney, provided they understand the responsibility and are willing to act in your best interests. Someone who is currently bankrupt cannot act as your Continuing (financial) attorney, though they can still act as your personal Welfare attorney. You can appoint more than one attorney, either to act jointly (agreeing on every decision together) or jointly and severally (able to act independently of one another), and it is good practice to name a substitute attorney in case your first choice later becomes unable or unwilling to act. Many people choose different attorneys for financial and welfare matters, for example a spouse for welfare decisions and an adult child with a finance background for money matters.
POA Costs in Scotland
£99
OPG Scotland registration fee, per document
£400+
Typical solicitor fee, including registration fee
Weeks
Typical registration processing time in Scotland
The Office of the Public Guardian (Scotland) charges a fixed registration fee of £99 for each Power of Attorney document submitted. Solicitor fees for drafting are separate and vary between firms, so ask for a fixed-fee quote before instructing anyone.
How is “capacity defined in Scotland?
Under the Adults with Incapacity (Scotland) Act 2000, you are treated as incapable if you are unable to act, make your own decisions, communicate decisions, understand decisions, or retain memory of decisions, because of a mental disorder, or because of a physical inability to communicate that cannot be overcome with support such as an interpreter or communication aid. This is a deliberately broad, functional test. It is not limited to dementia, and it is not tied to old age. A stroke, a serious accident, a brain injury or a period of unconsciousness can all trigger incapacity, at any age, which is exactly why it is worth putting a Power of Attorney in place well before it might ever be needed.
What happens if you lose capacity before you put a POA in place?
Your family would need to apply to the court for a guardianship order, a process that typically takes several months, involves independent medical and legal reports, and is considerably more expensive than setting up a Power of Attorney in advance. Guardianship orders also usually need to be renewed periodically.
Cancelling or changing your Power of Attorney
While you still have capacity, you can revoke or amend your Power of Attorney at any time, and it is sensible to notify the Office of the Public Guardian and your attorney in writing when you do.
A Power of Attorney also ends automatically in certain circumstances:
- On the death of the granter or the attorney
- On the attorney's bankruptcy (which ends their Continuing powers, though not their Welfare powers)
- Or where a court later appoints a guardian for the same matters
Divorce is also a common trigger worth knowing about: if the granter and their attorney are married to each other, the Power of Attorney automatically comes to an end on divorce, a decree of separation, or annulment of the marriage, unless the document specifically states otherwise. The same applies to civil partnerships. If you separate from a spouse or civil partner who is also your attorney, it is worth reviewing your Power of Attorney rather than assuming it still stands.
Common reasons applications are delayed
The Office of the Public Guardian (Scotland) will reject or return an application that is incomplete or incorrectly executed, so it is worth getting it right first time. The most frequent issues are a capacity certificate that has not been fully or correctly completed, pages of the document that have not been signed and dated by the granter and attorney in the correct order, and mismatches between the details in the Power of Attorney document and those on the registration form itself. Using an out-of-date form, or missing a signature on just one page, is enough to have the whole application sent back. Instructing a solicitor to prepare and submit the application significantly reduces the risk of an avoidable delay.
Lasting Power of Attorney in England & Wales
Governed by the Mental Capacity Act 2005. The document is called a Lasting Power of Attorney (LPA), and comes in two types:
- Property and Financial Affairs Lasting Power of Attorney
- Health and Welfare Lasting Power of Attorney
It is registered with the Office of the Public Guardian (England and Wales).
The two types of LPAs
A Property and Affairs LPA lets your chosen attorney manage your money, bank accounts, investments and property, and can be used immediately once registered, even while you still have capacity, if you choose.
A Health and Welfare LPA covers decisions about your daily care, medical treatment and living arrangements, and can only be used once you have lost mental capacity. Unlike in Scotland, these are always two separate legal documents in England & Wales, each of which must be registered on its own.
Anyone who made an Enduring Power of Attorney (EPA) before October 2007 may still rely on it, since EPAs were replaced by LPAs rather than cancelled, but nobody can create a new EPA today.
Choosing your attorney or attorneys
Anyone aged 18 or over can be your attorney, provided they have capacity themselves and are willing to act. No legal qualifications are required, and your attorney does not need to live in the UK, though this can add practical complications. An undischarged bankrupt, or someone subject to a debt relief order, cannot act as your Property & Financial Affairs attorney, though the same person can still act under a Health & Welfare LPA. You can appoint more than one attorney to act jointly (all decisions made together), jointly and severally (each able to act alone), or jointly for some decisions and severally for others, and it is worth naming a replacement attorney in case your first choice is later unable to act.
LPA Costs in England & Wales
£92
OPG registration fee, per LPA document
£184
Total to register both LPA types
16-20 Weeks
Typical OPG processing time for LPAs
The Office of the Public Guardian charges £92 to register each LPA, so registering both a Property & Financial Affairs LPA and a Health & Welfare LPA costs £184 in total.
A reduced fee of £46 is available where your gross annual income is below £12,000, and the fee is waived entirely for anyone receiving qualifying means-tested benefits.
Solicitor fees for drafting typically range from £300 to £600 per document, so a couple setting up both types of LPA each might expect to pay in the region of £900 to £1,400 in combined solicitor fees, on top of registration.
How is “capacity” defined in England & Wales?
The Mental Capacity Act 2005 sets out a two-stage test. First, there must be an impairment or disturbance in the functioning of the mind or brain, whether temporary or permanent. Second, that impairment must mean the person is unable to understand the information relevant to a particular decision, retain that information, use or weigh it as part of the decision-making process, or communicate their decision by any means. Capacity is assessed decision-by-decision and can fluctuate, someone may have capacity for simple day-to-day choices but lack it for complex financial decisions, and the same causes apply as in Scotland: dementia, stroke, brain injury and serious accidents can all bring this test into play, at any age.
What happens if you don’t have an LPA in place before you lose capacity?
Your family would need to apply to the Court of Protection to be appointed as a deputy, which involves a court application fee, an assessment fee, and ongoing annual supervision fees running into several hundred pounds a year. The process commonly takes months, and a deputy has less flexibility than an attorney chosen by you in advance.
Cancelling or changing your LPA
While you still have capacity, you can revoke your LPA at any time using a formal deed of revocation, and you should notify the Office of the Public Guardian and your attorney(s) in writing. An LPA also ends automatically in certain circumstances: on the death of the donor or the attorney, on the attorney’s bankruptcy (which ends their Property & Financial Affairs appointment specifically, not a Health & Welfare one), or if the attorney loses capacity themselves. As in Scotland, divorce is a common trigger: if your attorney is your spouse or civil partner, their appointment is automatically terminated on divorce or dissolution of the civil partnership, unless the LPA specifically states that it should continue. If you are going through a divorce and your former spouse is your attorney, it is worth checking whether any other attorneys you appointed can still act, and whether you need a new LPA.
Common reasons applications are rejected or delayed
LPA rejections have risen sharply: the Office of the Public Guardian rejected 133,760 LPA registrations in 2024, around 8.9% of all applications, and nearly three times the number rejected in 2021. The most common causes are surprisingly minor: a name or date written unclearly, a signature or date that does not match elsewhere in the document, information entered in the wrong section, or the donor, certificate provider and attorneys signing and dating the document out of the required order. Because the OPG’s review can be strict on these details, and a rejected application means starting large parts of the process again, instructing a solicitor to prepare and check the paperwork is one of the most effective ways to avoid a costly and stressful delay.
Power of Attorney versus a Will: What is the Difference?
These two documents are often confused, but they do opposite jobs. A Power of Attorney or LPA only has any effect while you are alive, it lets someone you trust manage your affairs or make decisions for you, and it ends automatically the moment you die. A will has no effect at all during your lifetime; it only takes effect after death, and sets out who inherits your estate and who administers it. Put simply, a Power of Attorney looks after you and your affairs while you are living but unable to manage them yourself, while a will looks after the people you leave behind once you are gone. Most people need both. If you have not yet put a Will in place, your estate is distributed under the rules of intestacy if you die without one.
Setting Up a Power of Attorney – The Process in Both Jurisdictions
- Decide What Powers You Need:
Consider whether you need financial powers, welfare powers, or both, and any specific instructions or restrictions you want to include.
- Choose Your Attorney or Attorneys
Your attorney should be someone you trust completely. You can appoint more than one person to act jointly or separately and name a substitute in case your first choice is unable to act later.
- Have The Document Certified by a Regulated Solicitor
In Scotland, the document must be signed in front of, and certified by, a solicitor or registered medical practitioner, confirming you understood what you were signing and were not under pressure. In England & Wales, a similar role is played by the “certificate provider”, either someone who has known you personally for at least two years, or a professional such as a solicitor or GP.
- Register It With the Relevant Office of the Public Guardian
Neither a Scottish Power of Attorney nor an English or Welsh LPA is legally usable until it has been registered with the appropriate Office of the Public Guardian. Registration can, and in practice should, be arranged well in advance of when it might actually be needed.
Plan ahead in England & Wales.
The Office of the Public Guardian’s current processing time is around 16 to 20 weeks from receipt of a complete application, considerably longer than in Scotland. This makes it especially important not to leave an LPA until it is needed.
Please note: This article is for general information purposes only and does not constitute legal advice. It should not be relied upon as a substitute for professional legal advice tailored to your specific circumstances. If you need advice on a legal matter, get in touch with our team.
