When you grant a Power of Attorney, and if it’s a Continuing and/or Welfare Power of Attorney, you expect it to last for the rest of your life. Of course, not all Powers of Attorney behave that way. If you grant a general Power of Attorney, it will end not only when you die but also if you become incapacitated. But there are other ways in which a Power of Attorney can come to an end.

A Continuing and/or Welfare Power of Attorney is a convenient way of allowing someone you trust to manage your affairs. It is essential should you lose your faculties as a result of an accident or a serious illness. If you are incapacitated, it allows your attorney to make the kind of decisions you would make if you were able to make them.

However, there are circumstances where a Power of Attorney can come to an end prematurely. You should be aware of these circumstances when you grant a Power of Attorney.

A Power of Attorney can come to an end when revoked by the granter

The person who has granted the Power of Attorney can revoke (cancel) it at any time. This, of course, is conditional on the granter having the capacity to revoke the Power of Attorney at that time.

When you grant a Continuing and/or Welfare Power of Attorney and it has been registered with the Office of the Public Guardian (Scotland) (OPG), the granter must tell them if they’ve revoked the Power of Attorney.

The revocation document the granter completes must clearly state that they’ve revoked the Power of Attorney. It must also be signed by the granter and then sent to the OPG with a revocation certificate. The revocation certificate must be signed by a practising Scottish Solicitor, a practising member of the Faculty of Advocates or a UK licensed medical practitioner. The purpose of this certificate is to certify that the granter of the Power of Attorney has capacity to revoke it.

When a Power of Attorney has been revoked, it means the attorney appointed by it no longer have authority to represent the granter of the Power of Attorney.

A Power of Attorney ends on the death of the Granter

As we have mentioned before, a Power of Attorney automatically comes to an end on the death of the granter. If the Power of Attorney is a Welfare and/or Continuing Power of Attorney, the OPG must be informed of the death of the granter. You must send the OPG the granter’s death certificate.

A Power of Attorney comes to an end is a sole attorney dies or is incapacitated

If the granter appointed a sole attorney and no substitute, if that attorney were to die or become incapacitated, the clearly can no longer act as an attorney. If there is a joint or substitute attorney, the Power of Attorney can continue.

Where there is a substitute attorney, they should notify the OPG that the original attorney has died or has become incapacitated. They must also confirm to the OPG that they are willing to act as the attorney.

Where the Power of Attorney is a Continuing Power of Attorney, the substitute attorney needs to confirm that they are not bankrupt and they do not have a protected trust deed in place. Once the substitute attorney informs the OPG of the position, they will then continue as the granter’s attorney. The OPG will update the register and issue a fresh certificate of registration.

A Power of Attorney can come to an end if a sole attorney resigns

Where a sole attorney resigns, a Power of Attorney will end. However, the attorney should tell the granter about their intention to resign. Where the Power of Attorney is a Continuing and/or Welfare Power of Attorney, the resigning attorney must also inform the OPG that they wish to resign. They should also inform any guardian or primary carer the granter of the Power of Attorney has.

In the case of a Continuing and/or Welfare Power of Attorney, the resignation will not be effective until twenty eight days after the OPG has processed the resignation.

Powers of Attorney and Divorce, Separation and Dissolution

When the granter of the Power of Attorney has appointed their spouse or civil partner as an attorney, and the marriage or civil partnership comes to an end, the Power of Attorney also comes to an end. However, if the Power of Attorney specifically states that it is to survive a divorce, dissolution or annulment of the marriage or civil partnership, in such cases, it can continue.

A Power of Attorney can come to an end if the attorney is declared bankrupt

If an attorney appointed under a Power of Attorney is declared bankrupt or if the attorney grants a protected trust deed, the Power of Attorney will come to an end.

In the event that the Power of Attorney is a Continuing and/or Welfare Power of Attorney, the OPG must be informed of the bankruptcy or the existence of the protected trust deed.

Guardianship Orders and Powers of Attorney

In the event that the granter of the Power of Attorney has a guardian appointed, the attorney’s authority to deal with the granter’s affairs will end but only to the extent that the guardianship covers that authority. For example, where a guardianship appointment has been made and it covers only the granter’s welfare but the attorney was appointed under a Continuing and Welfare Power of Attorney, the attorney is still able to deal with the granter’s finances. However, the attorney can no longer deal with any of the granter’s welfare matters.

If the guardianship order covers both financial and welfare matters, the Power of Attorney will come to an end completely.

A Power of Attorney will come to an end if a sheriff orders revocation

Where someone makes an application to the courts seeking to have the Power of Attorney revoked, a sheriff can grant a revocation order. When a sheriff grants a revocation order, the attorney’s authority to act under the Power of Attorney will come to an end.

Specialist Power of Attorney Solicitors, Dunfermline, Fife

We provide information and advice to those who wish to draw up a Power of Attorney. Stacey Parker has many years of experience helping and advising clients on Powers of Attorney in Dunfermline, throughout Fife and across Scotland.

If you are thinking about making a Power of Attorney or if you have a Power of Attorney and you wish to make changes or to revoke it, please get in touch with us.