Scottish banks have a legal duty to protect their customers' money. When a customer loses mental capacity, the bank cannot simply hand control of that account to a family member, even a spouse or adult child, without legal documentation confirming that person has the authority to act.
This applies regardless of:
Without legal authority, the bank's hands are tied. They are not being obstructive. They are following the law.
The only two forms of legal authority a Scottish bank will accept are:
If a Power of Attorney is already in place and the bank is still refusing access, there are a few possible reasons:
The POA has not been registered In Scotland, a Power of Attorney must be registered with the Office of the Public Guardian before it can be used. If it was signed but never registered, the bank cannot accept it. A solicitor can advise on registering an existing POA.
The POA is an old Enduring Power of Attorney Enduring Powers of Attorney created before the Adults with Incapacity (Scotland) Act 2000 came into force cover financial matters only and may have limitations the bank is flagging. A solicitor can clarify whether it is still valid and sufficient.
The appointed attorney has died or lost capacity If the person named as attorney is no longer able to act, the POA effectively breaks down and you may be in the same position as having no POA at all. A Guardianship Order can fill this gap.
The bank is being overly cautious Banks sometimes apply their own internal procedures that go beyond what the law requires. If you have a valid registered POA and the bank is still refusing access, a solicitor can write to the bank on your behalf to clarify your legal authority.
Legal Aid is available for most guardianship order applications in Scotland. For many families, this means the legal fees are covered in full.
Legal Aid is automatically available for welfare guardianship applications without a means test. Where a combined financial and welfare order is sought, the welfare element is covered by Legal Aid automatically.
Financial guardianship may also qualify for Legal Aid subject to a financial assessment of your parent's income and capital.
Where Legal Aid does not apply, total costs including solicitor fees, medical report costs, and court costs typically fall in the range of £1,500 to £3,000 or more. In many cases these costs can be recovered from your parent's own estate once the financial guardianship order is in place.
A solicitor will confirm your Legal Aid eligibility at the first consultation, before any work begins.
Not without legal authority. Scottish banks are required to protect their customers' money and will not allow access to an account by anyone, including a spouse or adult child, without either a valid registered Power of Attorney or a Guardianship Order in place. Some banks may allow limited access for small essential expenses at their discretion, but for general account management a legal order is required.
The account remains in the name of the person who has lost capacity and continues to receive income such as pension payments. However nobody else can access or manage it without legal authority. Direct debits will continue to go out but the family cannot intervene to pay bills, redirect funds, or manage the account in any way without a Power of Attorney or Guardianship Order.
Once a financial Guardianship Order is granted by the Sheriff Court, you can present it to the bank and access should be granted immediately. Obtaining the order typically takes 3 to 6 months from instructing a solicitor. If the situation is urgent an interim order may be available more quickly. A solicitor can advise on the fastest route for your specific circumstances.
Generally no. Most banks will not release funds for care home fees without legal authority. Some banks have a limited discretionary process for essential costs but this is not universally available and covers only small amounts. A financial Guardianship Order is the proper legal route for managing care fees on an ongoing basis.
Capacity in Scotland is assessed decision by decision. A person may retain capacity in some areas while lacking it in others. If your parent still has sufficient capacity to understand and sign a Power of Attorney, that route may still be available and is quicker than a guardianship order. A solicitor can assess capacity and advise on the most appropriate route. Contact us and we will connect you with a specialist who can advise quickly.
First confirm the POA is registered with the Office of the Public Guardian in Scotland, as an unregistered POA cannot be used. If it is registered and the bank is still refusing, a solicitor can write to the bank on your behalf to clarify your legal authority. Banks occasionally apply overly cautious internal procedures and a solicitor's letter often resolves this quickly.