What Is the Minimum Age to Grant Power of Attorney in Scotland?

Question from PB, What Is the Minimum Age to Grant Power of Attorney in Scotland?

Answer from AI:

Age requirement

In Scotland a person must be at least 16 years old to grant a Power of Attorney (POA). This is set out in the Adults with Incapacity (Scotland) Act 2000, which governs all POA arrangements. Anyone younger than 16 cannot create a valid POA, regardless of marital status or other circumstances.

Types of Power of Attorney

Scotland recognises two main forms:

• Ordinary Power of Attorney (OPA) – used for financial and property matters while the granter is still capable of managing their affairs. It ends automatically if the granter becomes incapacitated.
• Enduring Power of Attorney (EPA) – can cover financial matters, welfare matters, or both. An EPA continues to operate after the granter loses capacity, allowing the appointed attorney to act on their behalf.

Both types must be created while the granter has the mental capacity to understand the nature and effect of the document.

Key requirements for a valid POA

1. Capacity and age – the granter must be 16 or older and have the capacity to understand the POA.
2. Written form – the POA must be in writing and signed by the granter.
3. Witnesses – the granter’s signature must be witnessed by two independent adults who also sign the document.
4. Registration (for EPAs) – an Enduring Power of Attorney must be registered with the Office of the Public Guardian (Scotland) before it can be used. An Ordinary POA does not need registration but can be registered voluntarily for added protection.
5. Clear description of powers – the document should specify exactly what decisions the attorney may make (e.g., managing bank accounts, selling property, making health‑care choices).

When a POA may be challenged

If there is doubt about the granter’s capacity at the time the POA was executed, a court may intervene. The Adults with Incapacity (Scotland) Act allows the Court of Session or Sheriff Court to appoint a guardian or welfare attorney if the existing POA is found to be invalid or if the granter’s best interests are not being protected.

Practical steps

• Draft the document carefully – use a template that complies with the Act or have a solicitor prepare it.
• Choose a trustworthy attorney – the person will have significant authority over finances or personal welfare.
• Consider registration – for an EPA, submit the signed form to the Office of the Public Guardian (Scotland) along with the required fee.
• Keep copies safe – store the original in a secure place and give copies to the attorney and, if appropriate, to a trusted family member.

Need for professional advice

While the basic rules are straightforward, the details of a POA can become complex, especially when dealing with mixed financial and welfare powers or when the granter’s capacity may be uncertain. Consult a solicitor or a qualified legal adviser to ensure the POA meets all legal requirements and truly reflects the granter’s wishes.

Useful resources

• Adults with Incapacity (Scotland) Act 2000 – the primary legislation governing POAs.
• Office of the Public Guardian (Scotland) – guidance on drafting, registering, and using POAs.