Which? Power of Attorney Service - Scotland

TCA

I'm looking into Power of Attorney in Scotland where we don't have the same DIY form-filling options as England and Wales. Given solicitors charge around £400 for PoA, the Which? DIY service at around £69 (for both welfare and continuing powers of attorney) looks good value, complies with Scots Law and your completed document is reviewed by legal professionals.

The only additional hoop you have to jump through is to get a certificate of capacity signed by a solicitor, but I've found one who'll do this for £72. Registration with the Office of the Public Guardian (Scotland) looks easy enough and costs the same in either case.

Has anyone in Scotland used the Which? PoA service and successfully registered a PoA with the Office of the Public Guardian?

Thanks for any feedback.

sheramber

TCA said:

I'm looking into Power of Attorney in Scotland where we don't have the same DIY form-filling options as England and Wales. Given solicitors charge around £400 for PoA, the Which? DIY service at around £69 (for both welfare and continuing powers of attorney) looks good value, complies with Scots Law and your completed document is reviewed by legal professionals.

The only additional hoop you have to jump through is to get a certificate of capacity signed by a solicitor, but I've found one who'll do this for £72. Registration with the Office of the Public Guardian (Scotland) looks easy enough and costs the same in either case.

Has anyone in Scotland used the Which? PoA service and successfully registered a PoA with the Office of the Public Guardian?

Thanks for any feedback.

Haven’t used Which but I used this one . Registered it with no problems.

https://www.myscottishattorney.co.uk/

TCA

Thanks @sheramber.

Out of interest, did you register the PoA electronically via the Office of the Public Guardian website or did you post the document? I see there are specific requirements for the document layout if you upload via EPOAR.

sheramber

I can’t remember. It was so long ago. 
 

Vienss

Yes, I used the Which? DIY service for both welfare and continuing PoAs in Scotland last year—super straightforward and the legal review gave me peace of mind. Total cost around £150 including the £75 capacity cert from my local solicitor. Registration with OPG was a breeze online; approved in 4 weeks with no hitches. Highly recommend—saves a fortune vs. full solicitor fees! Just double-check your details before signing.

TCA

Vienss said:

Yes, I used the Which? DIY service for both welfare and continuing PoAs in Scotland last year—super straightforward and the legal review gave me peace of mind. Total cost around £150 including the £75 capacity cert from my local solicitor. Registration with OPG was a breeze online; approved in 4 weeks with no hitches. Highly recommend—saves a fortune vs. full solicitor fees! Just double-check your details before signing.

Great, thanks. Sounds good.

That's very fast approval at 4 weeks. When I got my will sorted a year ago, the solicitor told me processing time for PoA was 6 months. It's now at over 1 year, according to the latest figures on the OPG Scotland website.

TCA

Looking through the possible reasons for PoA rejection on the Office of the Public Guardian (Scotland) website and the first reason given is "The PoA document contains a springing clause which prevents registration".

I'm struggling to get my head round it. Below is from a legal website:

Continuing Power of Attorney (CPA)

You can activate your Continuing Power of Attorney immediately. However, you will have full control over your affairs until you can no longer manage them yourself.

Alternatively, you can include a 'springing clause' in your Continuing Power of Attorney. This means the Continuing Power of Attorney will only become active when a specific event (at a particular time) occurs, such as a doctor confirming your incapacity. Until this event occurs, the Continuing Power of Attorney cannot be officially registered with the Office of the Public Guardian Scotland.

Welfare Power of Attorney (WPA)

A Welfare Power of Attorney only becomes active when you can no longer make decisions for yourself. You must include a statement detailing how your loss of mental capacity will be assessed, such as confirmation from a doctor or solicitor.

So to me that reads like the rules of a WPA effectively include a springing clause because the PoA isn't active until incapacity occurs. So I presume no explicit clause is necessary as the WPA is only active when capacity is lost. Fair enough.  

The CPA however, as described above, doesn't make sense to me. If the CPA is activated immediately, how can you have "full control over your affairs until you can no longer manage them yourself"? 

From elsewhere:

"Unless you state otherwise in your POA document pre-registration (by way of a springing clause or similar) your financial attorney will be able to act on your behalf as soon as your POA is registered by the OPG, irrespective of your status of capacity"

Is the first section above on CPA just badly worded?

Also, what's the logic in not being able to register a CPA with a springing clause? I would've thought a springing clause keeping the granter's financial powers to himself/herself until incapacity was quite common. So you could register the PoA, albeit it doesn't activate. Yet include that clause and you can't register the PoA? So when loss of capacity happens, someone else has the job of registering the PoA? That seems crazy.

Edited to add - just found this from another legal website:

"Even if you have chosen to include a 'springing clause' (so that your continuing power of attorney will only be effective in the event that you no longer have capacity to manage your affairs) you still need to register it as soon as possible so that a valid and effective document is in place and available for use by your attorney, if and when required in the future".

That makes more sense to me. Starting to think the OPG Scotland website is just stating that an incorrect springing clause could prevent registration, not just any springing clause and that many legal websites are misinterpreting this. e.g. if a springing clause explicitly states the PoA cannot be registered until a certain event takes place, then obviously it can't be registered.  

Can anyone shed any light?   

sheramber

The CPA however, as described above, doesn't make sense to me. If the CPA is activated immediately, how can you have "full control over your affairs until you can no longer manage them yourself"? 

Your attorney doesn't need to act for you until you are unable or until you request them to do so.

You may be mentally competent but in hospital or abroad and it is easier for your attorney to deal with something on your behalf.

You may be mentally competent but prefer for your attorney to deal with your financial affairs such as arranging house insurance, dealing with officialdom over a dispute.

My POA  has been in place for over 10 years but has never been used.  But , if I  was suddenly rendered unconscious  it could be used.

'A springing clause which makes it unable to be registered'  is not the same as ' a springing clause , which makes it unable to be registered'.

Punctuation changes the meaning.

TCA

sheramber said:

'A springing clause which makes it unable to be registered'  is not the same as ' a springing clause , which makes it unable to be registered'.

Thanks @sheramber. That's cleared it up. There is definitely some wrong information out there which leads you to believe that any springing clause prevents registration of the PoA. 

sheramber said:

The CPA however, as described above, doesn't make sense to me. If the CPA is activated immediately, how can you have "full control over your affairs until you can no longer manage them yourself"? 

Your attorney doesn't need to act for you until you are unable or until you request them to do so.

You may be mentally competent but in hospital or abroad and it is easier for your attorney to deal with something on your behalf.

You may be mentally competent but prefer for your attorney to deal with your financial affairs such as arranging house insurance, dealing with officialdom over a dispute.

    
That's all true, but in respect of an immediately activated CPA, I meant that although the granter may still have control over his/her finances, the attorney presumably also has the same powers. Obviously the granter chooses a trustworthy attorney, but if a CPA is active right away, is there anything to stop an attorney from doing what they want with the granter's assets?