Power of attorney in Scotland: continuing, welfare and guardianship

In Scotland, a power of attorney is made under the Adults with Incapacity (Scotland) Act 2000, not England’s Mental Capacity Act. A continuing power covers money and property and can be used as soon as it is registered. A welfare power covers health and care decisions and can only be used once the person has lost capacity. Registering either or both with the Office of the Public Guardian (Scotland) costs £99 from 1 April 2026. Without one, families usually need a guardianship order from the sheriff court, which is slower and more expensive.

In short

• Two types, often combined in one document: continuing (financial) and welfare (personal and health decisions).
• A solicitor, practising advocate or registered doctor must interview your parent immediately before they sign and certify that they understand it. The attorney cannot be the certifier.
• Registration fee: £99 from 1 April 2026 (was £96). People on certain means-tested benefits may be exempt.
• If capacity has already gone, the options are access to funds (£110), an intervention order or a guardianship order (£110 to register). A financial guardian also pays supervision fees of up to £1,544 for the management plan, depending on the size of the estate.
• Guardianship orders usually last 3 years. The application needs two medical reports from examinations within 30 days, plus a mental health officer’s report for welfare powers.
• An English lasting power of attorney is accepted by Social Security Scotland for devolved benefits only if it is registered and covers benefits.

Continuing and welfare powers compared

Most people choose a combined document. For selling a house, the powers must clearly cover property, so check the wording with the solicitor.

How to make a power of attorney in Scotland

1. Choose attorneys and substitutes. Pick people you trust who are organised and live close enough to help. Naming a substitute avoids a gap if an attorney dies or steps down.
2. Decide the powers. List the financial and welfare powers wanted. If a continuing power should only start on loss of capacity, the document must say how that will be decided.
3. Get the certificate. A solicitor, practising advocate or doctor interviews your parent immediately before they sign. They must be satisfied that your parent understands what they are granting and is not under undue influence.
4. Register with the Office of the Public Guardian (Scotland). Solicitors usually register online. The OPG then returns the document with a certificate of registration.
5. Use it. Send certified copies to the bank, the council, Social Security Scotland and the GP practice as needed.

Solicitors and doctors set their own fees, so ask for a fixed price. Once your parent can no longer understand what they are signing, a power of attorney cannot be made.

2026/27 costs at a glance

Your parent may be exempt from the fee if they (or sometimes their spouse) get certain means-tested benefits, such as Universal Credit or guarantee Pension Credit. Ask the OPG for the current rules.

What an attorney must do

Every decision must follow the principles in section 1 of the 2000 Act. Any action must benefit your parent and be the least restrictive option. It must take account of their past and present wishes, the views of relevant others, and encourage them to use the skills they have. In practice:

• keep your parent’s money separate from your own, and keep receipts and records;
• involve them in decisions as far as possible, even when they lack capacity overall;
• follow the Scottish Government’s codes of practice for continuing and welfare attorneys.

The OPG investigates concerns about financial attorneys, and councils about welfare attorneys. Our guide to scams targeting older people explains how a power of attorney can protect against financial abuse.

A welfare attorney with the right powers can agree a care home move for a parent who cannot decide. Without one, a council can sometimes arrange services for an adult who lacks capacity under section 13ZA of the Social Work (Scotland) Act 1968. It cannot do so where an attorney or guardian already holds the relevant powers.

If your parent has already lost capacity

If no power of attorney exists, there are three main routes:

• Access to funds: a family member applies to the OPG to withdraw money from one of your parent’s bank accounts to pay day-to-day bills. Fee £110. It is useful for paying for care, but it does not allow selling property.
• Intervention order: a one-off decision from the sheriff, for example to sell the house or sign a care home contract.
• Guardianship order: ongoing powers over finances, welfare or both, granted by the sheriff court.

How guardianship works

Anyone with an interest can apply, usually through a solicitor. The application needs two medical reports from examinations within 30 days of lodging. Where incapacity comes from a mental disorder such as dementia, one doctor must be a specialist. Welfare powers also need a report from a mental health officer, and financial powers a report from someone with enough knowledge of your parent’s situation. The sheriff normally grants guardianship for 3 years, but can set a different or indefinite period. If nobody else applies and an order is needed, the council must apply.

Ongoing fees for a financial guardian (2026/27)

Worked example: power of attorney vs guardianship

Ian’s father has £40,000 in savings and a house. If his father registers a combined power of attorney while well, the OPG fee is £99. If he loses capacity first, Ian needs a financial guardianship order. OPG fees alone would be £110 to register, £309 for the management plan and £253 for the first account review: £672 before any legal costs, medical reports or later reviews. It also takes months.

English lasting powers of attorney in Scotland

A lasting power of attorney made in England or Wales is a different document under different law. Social Security Scotland will accept a registered English LPA for devolved benefits, such as Pension Age Disability Payment, only if it includes a power that covers claiming and managing benefits. A health and welfare LPA alone does not. Banks and councils may ask more questions. If your parent now lives in Scotland and still has capacity, making a Scottish power of attorney is usually simplest. For England’s rules, see how to get power of attorney and lasting power of attorney or deputyship.

Mistakes to avoid

• Waiting for a diagnosis. A dementia diagnosis does not automatically end capacity, but it makes the certificate interview harder as time goes on.
• Granting only a continuing power. Without welfare powers, decisions about a care home move can stall.
• Forgetting to register. An unregistered Scottish power of attorney cannot be used.
• Mixing money. Unrecorded payments invite questions at a financial assessment.

An attorney often handles the council’s means test, top-up agreements and decisions about selling the house, so read those guides too. Advance wishes about treatment are separate: see DNACPR and advance decisions.

Frequently asked questions

How much does power of attorney cost in Scotland?

The Office of the Public Guardian (Scotland) charges £99 to register a continuing, welfare or combined power of attorney from 1 April 2026, up from £96. Solicitors charge their own fee for drafting and certifying, so ask for a fixed quote. People receiving certain means-tested benefits, such as guarantee Pension Credit or Universal Credit, may be exempt from the fee.

What is the difference between continuing and welfare power of attorney?

A continuing power of attorney covers money and property, such as bank accounts, bills, care fees and selling a house. It can be used once registered. A welfare power of attorney covers decisions about care, health and where to live, and can only be used when the person cannot make the decision themselves. Most people grant both in one document.

Can you get power of attorney if someone has dementia in Scotland?

Possibly, if they still understand what they are granting. A solicitor, advocate or doctor must interview them immediately before they sign and certify that they understand it. A diagnosis does not rule this out, especially in the early stages. If they can no longer understand it, the family will need an intervention or guardianship order instead.

What happens if there is no power of attorney in Scotland?

Nobody, including a spouse or child, automatically has authority over another adult’s money or welfare. Families can apply to the Office of the Public Guardian for access to funds (£110 in 2026/27) to pay bills, or ask the sheriff court for an intervention order or guardianship order. Guardianship needs medical and social work reports and usually lasts three years.

Is an English lasting power of attorney valid in Scotland?

It can be relied on in some situations, but it is not a Scottish power of attorney. Social Security Scotland accepts a registered English LPA for devolved benefits only if it includes a power covering benefits. Banks and councils may ask further questions. If your parent lives in Scotland and still has capacity, a Scottish power of attorney is usually simpler.

How long does guardianship last in Scotland?

The sheriff usually grants a guardianship order for three years, but can set another period, including an indefinite one, if there is good reason. It can be renewed, which costs £110 to register in 2026/27. Financial guardians must also submit a management plan and accounts to the Office of the Public Guardian, with fees based on the size of the estate.

Sources

• The Adults with Incapacity (Public Guardian’s Fees) (Scotland) Regulations 2026 (SSI 2026/81), Schedule 1
• Office of the Public Guardian (Scotland): fees
• Office of the Public Guardian (Scotland): fee exemption
• Office of the Public Guardian (Scotland): information for doctors and solicitors
• Adults with Incapacity (Scotland) Act 2000, section 15
• Adults with Incapacity (Scotland) Act 2000, section 57
• Adults with Incapacity (Scotland) Act 2000, section 58
• Social Work (Scotland) Act 1968, section 13ZA
• Social Security Scotland: client representative guidelines, power of attorney

General information, not legal or financial advice. Figures for 2026/27, checked October 2026.

Reviewed by The Care Panel team on 29 October 2026. This guide is general information about care in England, not legal, medical or financial advice. Rules and rates change; check with your council or an adviser before making decisions.