Murray Beith Murray LLP is a leading Scottish private client law firm.
For 175 years we have specialised in meeting the legal, financial and administrative needs of individuals and families, family trusts, charities and private companies.
Murray Beith Murray LLP is a leading Scottish private client law firm.
For 175 years we have specialised in meeting the legal, financial and administrative needs of individuals and families, family trusts, charities and private companies.
In life, things change over time. That means you must be able to change arrangements you make from time to time. When you take the steps to grant a Power of Attorney, you consider the circumstances you face at that moment in time. What happens, however, if circumstances change? This article considers how you can change a Power of Attorney in Scotland.
There are three types of Power of Attorney in Scotland. These are:
General Power of Attorney
This type of Power of Attorney is usually granted for the sake of convenience. A common example of when this type of Power of Attorney is used is when someone works abroad or travels abroad extensively, and they need someone in Scotland who is able to look after their affairs in their absence and sign documents on their behalf. However, should you become incapacitated, this Power of Attorney can no longer be used.
Continuing Power of Attorney
A Continuing Power of Attorney authorises your attorney to deal with all aspects of your financial affairs.
Welfare Power of Attorney
A Welfare Power of Attorney allows your attorney to deal with all aspects of your welfare.
Frequently, financial and welfare powers are combined into a Combined Continuing and Welfare Power of Attorney.
In contrast to the General Power of Attorney, a “Continuing” of Power of Attorney subsists (or continues), even if the granter becomes incapacitated.
If you are the granter of a Power of Attorney, you can change this at any time provided you have capacity. Any changes will need to be recorded legally which involves someone (eg a solicitor or medical practitioner) completing a certificate to confirm that you still have the capacity to make changes to the original document.
When you grant a Continuing and/or Welfare Power of Attorney, it will be registered with the Office of the Public Guardian (Scotland) (OPG).
Since 30th October 2023, if you need to make minor administrative changes to your Power of Attorney, you can ask the OPG to update their records. Such minor administrative changes might be a change of name or address of the granter or an attorney. However, any significant changes cannot be made by simply having the OPG update their records.
If you wish to make significant changes to a Power of Attorney, such as adding or removing an attorney or increasing or reducing an attorney’s powers, then a fresh Power of Attorney should be created.
The challenge here, of course, is that you still must have the capacity to grant a Power of Attorney at the time you make the change.
When you create a new Power of Attorney, at the same time, you should revoke (cancel) your existing Power of Attorney. You can include a clause cancelling or revoking a previous Power of Attorney. In addition to the certificate of capacity required when you grant a Power of Attorney, you need to include a revocation notice.
Partner, Peter Shand heads our Asset Protection Group and specialises in succession and estate planning, trusts and tax. This article focuses on the position in Scotland. The position in England differs and Peter is one of the firm’s dual qualified lawyers who can advise on both jurisdictions.
If this article has raised any questions or you would like to discuss your affairs, then please complete our contact form or call us on 0131 225 1200. Murray Beith Murray LLP was established in 1849, as advisors for generations of clients, committed to our values of integrity, expertise and trust. This aim and these values continue to this day as does our commitment to be here when you need us.
