Over the years, popular culture has brought questions of control and decision-making into the public domain, with the likes of the high-stakes drama of family authority depicted in Succession and Britney Spears' conservatorship prompting more conversations about legal tools like wills and pre-nuptial agreements.
Powers of Attorney - not just for old age
However, Powers of Attorney (POA) have been largely overlooked. Recent research by Co-op on financial affairs and later life planning reported on wills, life insurance and funeral plans, yet POAs were conspicuous in their absence. This is likely due to the common misconception that a POA is 'for old age', or TV shows and real-life celebrity dramas reinforcing the idea that granting legal authority means surrendering control.
In practice the opposite is true - on both counts. An accident, serious illness or unexpected medical emergency can affect any adult, temporarily or permanently. Incapacity does not follow a strict timeline and, in reality, a POA is one of the clearest ways to exercise control over what happens in the event you cannot act for yourself.
Under Scots law, a POA is a written legal document in which you choose one or more persons to act on your behalf in specific circumstances. A continuing POA covers property and financial affairs and, depending on its terms, those powers may come into effect while you still have capacity. A welfare POA covers personal healthcare decisions and can only be used if you lose capacity in relation to the decision concerned.
A POA enables choice
The crucial word in all of this is 'choice'. You decide whom you trust. You can even appoint different individuals for financial and welfare matters, appoint more than one person and name substitutes. This is why timing is vital - a POA must be drawn up while you understand its nature and extent and registered with the Office of the Public Guardian before an attorney has authority to act. It's important to note that this registration can take some time - but in the event of an emergency, a signed and dated POA can be expedited through registration if needed.
It is far better to complete the process as part of ordinary planning at key stages of life like buying a home, making a will, starting a family or even preparing for extended travel such as a gap year. A continuing POA offers a practical route for a trusted person to help with specified financial matters - it's not just about permanent incapacity, but can also ensure you have temporary support to manage your affairs if needed.
Without the document, even your closest relative does not automatically have legal authority to manage your bank account, sign documents or make welfare decisions for you. Marriage or family relationships are not substitutes for formal authority - a painful reality made even worse if discovered during a crisis, when loved ones are already dealing with the practical and emotional consequences of illness, injury or incapacity.
What happens if you lost capacity?
If someone loses capacity without suitable arrangements in place, a guardianship order usually has to be granted to provide the necessary authority. While the order 'does the job', it completely removes the element of choice from the incapacitated individual: anyone claiming to have an interest in the person's property, finances and personal wellbeing can apply to the Sheriff Court. And, with various reports to be submitted to the court within 30 days of the application, it adds expense and stress to already difficult circumstances.
It's also worth noting POAs remain in place until the granter makes a change - unlike guardianship orders, which must be renewed after a certain period of time. That said, POAs should not simply be signed and forgotten. It's prudent to review arrangements regularly: relationships change, or an attorney (the person you choose to make decisions on your behalf) may pass away, become unable to act or no longer be the right person for the role. So long as the granter retains capacity, an existing POA can be revoked and replaced.
If you want to be sure your financial affairs, personal wellbeing and future wishes are fully within your control, a will and POA must go hand-in-hand. Your will deals with your estate after death, while a POA protects your interests during your lifetime and ends on death - one cannot replace the other.
Nobody has a crystal ball to predict when an illness or accident might disrupt their lives. Planning for that eventuality is not pessimistic, nor is it relinquishing control. It's a decision to keep control firmly where it belongs: with you.
Featured in the following publications in August 2026: