A Power of Attorney (PoA) is one of the most important legal documents a person in Scotland can put in place to protect their affairs in later life.
But while granting a PoA offers peace of mind and future security, questions often arise about how much power an attorney really has — and more importantly, who can override that power if things go wrong.
At d and h, we regularly advise clients across Scotland on setting up and managing Powers of Attorney. In this blog, we explore why PoAs are created, the limits of an attorney’s authority, and the legal avenues available if a Power of Attorney needs to be challenged or revoked.
What is a Power of Attorney in Scotland?
In Scotland, a Power of Attorney is a legal arrangement that allows a trusted individual (the attorney) to act on behalf of another person (the granter) should they become incapable of making decisions themselves.
There are two main types of PoA in Scotland:
- Continuing Power of Attorney – Deals with financial and property matters and can begin either immediately or only if the granter loses capacity.
- Welfare Power of Attorney – Covers health and personal welfare decisions, but only takes effect if the granter becomes mentally incapable.
These are often granted together in a combined document and must be registered with the Office of the Public Guardian (Scotland) before they become valid.
Why set up a Power of Attorney?
A Power of Attorney is a proactive way to ensure that your wishes are respected if you lose capacity due to illness, accident, or age-related conditions like dementia. It avoids the need for lengthy and costly guardianship applications and allows a chosen person or people to manage your affairs smoothly and in your best interests. Without a PoA, families often face difficult and time-consuming court processes to gain the legal authority to act on a loved one’s behalf.
Can a Power of Attorney be overridden?
Yes, there are specific circumstances under which a Power of Attorney can be challenged, suspended, or revoked in Scotland. However, overriding a PoA is not
1. Revocation by the Granter
If the granter still has legal capacity, they can revoke the Power of Attorney at any time. This must be done in writing and notified to the Office of the Public Guardian (OPG). Revocation is only valid if the granter understands the consequences and is not under duress.
2. Intervention by the Office of the Public Guardian (Scotland)
The OPG supervises registered attorneys and has the power to investigate concerns about how a PoA is being used. If it receives a complaint — whether from family members, healthcare professionals, or financial institutions — the OPG can:
- Launch an investigation,
- Suspend the attorney’s powers temporarily,
- Refer the matter to the Sheriff Court for a decision.
3. Court Action via the Sheriff Court
If the OPG finds that an attorney is not acting in the granter’s best interests — or if someone close to the granter believes the attorney is abusing their role — they can apply to the Sheriff Court to have the PoA varied or cancelled.
The court can:
- Remove an attorney,
- Restrict their powers,
- Appoint a guardian or intervener instead.
4. Disputes Between Attorneys
When more than one attorney is appointed, and they disagree over major decisions, this can lead to deadlock. In such cases, the OPG or the court may step in to resolve the dispute or adjust how powers are exercised.
Grounds for challenging a Power of Attorney
Some common reasons for challenging or overriding a PoA in Scotland include:
- Suspected financial abuse or exploitation of the granter.
- Failure to act in the granter’s best interests, such as neglecting care needs.
- Conflict of interest or mismanagement of funds.
- Concerns that the PoA was granted under pressure or when the granter lacked capacity.
How d and h can help
If you believe a Power of Attorney in Scotland is being misused — or you’re facing a dispute involving a family member’s PoA — d and h is here to support you. Our experienced team provides clear legal advice and can guide you through the process of:
- Raising a concern with the Office of the Public Guardian,
- Applying to the Sheriff Court for intervention,
- Revoking or amending an existing PoA,
- Drafting a robust and legally compliant Power of Attorney for yourself.
We act with compassion, discretion, and a firm understanding of Scottish mental capacity law.
Speak to our solicitors today
Whether you're setting up a Power of Attorney or challenging one that’s already in place, clear and straightforward legal advice is essential. The decisions made today can protect you and your loved ones for years to come.
Contact d and h today to speak with a solicitor specialising in Scotland's power of attorney.