OPG Scotland Power of Attorney: What Happens When Someone Dies

The Office of the Public Guardian (OPG) Scotland governs the registration and oversight of Powers of Attorney in Scotland. For families managing a death, the most important thing to understand about a Scottish Power of Attorney is this: it ends at the moment of death, and any action taken after that point is legally void.

This is not intuitive — many attorneys believe they retain authority to manage the deceased's affairs, especially if they have been actively managing the person's finances for months or years. They do not.

What the OPG Scotland Does

The OPG Scotland is a government body that:

• Maintains the public register of Continuing and Welfare Powers of Attorney
• Registers new Powers of Attorney submitted for registration (fee: £99 per document)
• Oversees the Access to Funds scheme for incapacitated adults who lack a registered Power of Attorney
• Handles adult protection matters and guardianship orders

For estate administration purposes, the OPG's primary relevance is the termination of Powers of Attorney on death and the registration-at-death notification process.

Power of Attorney Ceases Immediately at Death

Under the Adults with Incapacity (Scotland) Act 2000, any Continuing or Welfare Power of Attorney registered with the OPG Scotland terminates automatically when the granter (the person who made the Power of Attorney) dies.

The moment of death is the exact moment the attorney's authority ends. This means:

• The attorney cannot access bank accounts after the date of death
• The attorney cannot pay bills after the date of death
• The attorney cannot make decisions about property, investments, or any other matters after the date of death
• Any transaction executed by the attorney after the date of death is legally invalid

Banks are entitled to demand their money back if a transaction is made using a Power of Attorney after death. Even if the attorney uses the access for an apparently legitimate purpose — paying the funeral director, covering a pending direct debit — it is legally unauthorised.

What the Attorney Must Do After Death

The appointed attorney (or substitute attorney if one exists) must:

1. Immediately cease using the Power of Attorney for any purpose
2. Notify the OPG Scotland in writing of the granter's death
3. Provide a copy of the death certificate to the OPG
4. The OPG will close the file and update the public register to record the Power of Attorney as terminated

There is no fee for this notification. It is an administrative obligation. Failing to notify the OPG does not extend the attorney's authority — it is still terminated — but it leaves the register inaccurate.

The attorney should also notify any financial institutions where they have been using the Power of Attorney, confirming that the authority has ended and providing the death certificate.

What Happens to Finances After the Power of Attorney Ends?

Once the Power of Attorney terminates, nobody has automatic legal authority to access the deceased's accounts. The estate is effectively frozen until the executor obtains Confirmation from the Sheriff Court.

This creates an immediate practical problem for families: bills are still coming in, the funeral needs to be paid for, and there may be a gap of several weeks or months before Confirmation is granted.

The practical solutions are:

• Bank bereavement services: Most major Scottish banks will release funds directly to a funeral director to pay funeral expenses, upon production of the death certificate. This bypasses the Confirmation requirement for this specific purpose.
• Tell Us Once: Used to stop state pension payments and prevent ongoing DWP benefit overpayments from creating a debt against the estate
• Executor's own funds: The executor can advance funds from their own account for urgent costs and reclaim from the estate once Confirmation is granted

The Access to Funds Scheme: While Someone Is Still Alive

The Access to Funds scheme is a different OPG service that applies during a person's lifetime — before death — when they have lost mental capacity but have no registered Power of Attorney in place.

If a vulnerable adult becomes incapacitated and has no Continuing Power of Attorney, their family cannot simply access their bank accounts to pay for care home fees or living expenses. The conventional alternative — applying for formal Guardianship through the courts — is lengthy, expensive, and procedurally complex.

The Access to Funds scheme provides a faster route. It allows an individual or organisation (such as a local authority or family member) to apply directly to the OPG for specific, limited authority to access the incapacitated adult's bank accounts for defined purposes — regular monthly expenses, or specific lump-sum payments for care costs. The OPG charges a £110 registration fee for this service.

For families managing an elderly parent's declining capacity, the Access to Funds scheme is often the most cost-effective and least restrictive interim solution while longer-term arrangements (Guardianship, or registering a late Power of Attorney where capacity might still marginally exist) are considered.

Costs: OPG Scotland Fee Schedule

Powers of Attorney are not legally effective until registered with the OPG. An unregistered Power of Attorney cannot be used to access bank accounts or take decisions on someone's behalf. This is a common mistake — families sometimes find a Power of Attorney document signed by a parent but never registered, and discover it has no practical effect.

Difference Between Scottish and English Powers of Attorney

Scotland's Power of Attorney regime operates entirely separately from England and Wales. A Lasting Power of Attorney (LPA) registered with the Office of the Public Guardian in England is not automatically valid in Scotland — and vice versa.

If the deceased had financial affairs in both Scotland and England, there may be separate documents for each jurisdiction. Banks in each country will look for the relevant registered document for their jurisdiction.

Equally, the OPG Scotland is an entirely separate body from the OPG England and Wales. Notifications to one do not automatically notify the other.

What Happens if There Was No Power of Attorney and the Person Is Still Alive?

If a family member is losing capacity and has not put a Power of Attorney in place, time is critical. A Power of Attorney can only be granted by someone who still has the mental capacity to understand what they are signing. Once capacity is lost, it is too late to register a Power of Attorney.

If capacity is already diminished, the family should seek an urgent assessment of whether any residual capacity exists. If so, a Power of Attorney can still be executed. If not, the options are the Access to Funds scheme (for limited financial access) or a formal application to the court for Guardianship.

For families with elderly relatives, discussing Power of Attorney before it becomes urgent is by far the simplest path. OPG Scotland registration provides a clear legal framework that costs £99 and avoids the expense and stress of both the Access to Funds scheme and formal Guardianship.

Understanding when a Power of Attorney ceases and what legal authority exists over a deceased person's assets is one of the first questions every Scottish family faces. The When Someone Dies in Scotland Estate Settlement Guide covers the transition from Power of Attorney to executor authority, with a step-by-step account of the Confirmation process that follows.

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