This document should be read in conjunction with the 'Adults with Incapacticy (Certificates in Relation to Powers of Attorney) (Scotland) Regulations 2001.
Certificates relating to Powers of Attorney
1. Introduction
1.1 This guidance note should be read in conjunction with the Adults with Incapacity (Certificates in relation to powers of attorney) (Scotland) Regulations 2001. It contains advice for those issuing certificates prescribed under these regulations.
2. Certificates
2.1 A certificate under these regulations must be incorporated in any continuing or welfare power of attorney granted under section 15 or 16 respectively of the Adults with Incapacity (Scotland) Act 2000 (2000 asp 4). Both certificates, as set out in Schedules 1 and 2 of the regulations, are needed where a power of attorney contains both continuing and welfare powers.
2.2 The effect of the certificate is to confirm that an adult granting a continuing or welfare power of attorney understands its nature and extent and is not acting under undue influence or any other factor that vitiates the grant. If the signatory's own knowledge of the granter is inadequate to certify that the granter understands the nature and extent of the power granted, the signatory must consult another person or persons who can satisfy him or her that the granter understands. The signatory may also be satisfied both on the basis of his or her own knowledge and the knowledge of another person or persons.
2.3 Such a certificate may only be signed by, a solicitor, a practising member of the Faculty of Advocates or a registered medical practitioner.
3. The interview
3.1 The granter should be interviewed personally immediately before the document containing the power of attorney is signed. The interview should be conducted face to face and not by telephone or other remote means.
3.2 It is essential to distinguish lack of capacity from lack of ability to communicate. Inability to communicate only counts as incapacity if it cannot be made good by human or mechanical means. If the granter has communication difficulties, interpreters, signers, computer technology or other communication aids may be employed to assist communication between the granter and the signatory.
4. Signature
4.1 The signatory to the certificate may not be the person who is granted the power of attorney. If the person who is granted the power of attorney is a solicitor in a firm, another solicitor in the same firm may sign the certificate.
4.2 At profession, the signatory should put "solicitor", "advocate", or "registered medical practitioner".