The reality is that the common "will or power of attorney" question is not actually a choice at all. The two documents do different jobs at different points in your life, and having one gives you no protection in the situation the other is designed for.

This post sets out the key legal differences under Scots law. It is important to understand that Scotland has its own succession rules and its own incapacity legislation - much of the guidance you will find online describes the system in England and Wales.

In short

A power of attorney covers you while you are alive but unable to make or communicate decisions for yourself and your finances.

A will covers what happens to your estate after you die.

A power of attorney stops working the moment you die. A will has no effect until you die. 

There is no overlap, which is why it should never be an either / or question.

What a will does under Scots law

A will sets out how your estate is distributed after death, names your executor, appoints guardians for children under 16 and can set up trusts for young or vulnerable beneficiaries.

In Scotland, you can make a will from age 12. It must be in writing and signed by you, and to be self-proving it should also be signed by one witness aged 16 or over who is not a beneficiary.

The sharpest divergence from English law is legal rights.

Your spouse or civil partner and your children have an automatic entitlement over your moveable estate, such as money, savings, shares, vehicles and possessions, regardless of what your will says. These are known as legal rights. Heritable property, such as land and buildings, sits outside legal rights.

Broadly, where you are outlived by both a spouse (or civil partner) and children, your spouse or civil partner is entitled to one third of your net moveable estate, and your children are collectively entitled to a further one third. Where you leave a spouse or civil partner but no children, or children but no spouse or civil partner, the relevant entitlement increases to one half of the net moveable estate.

What a power of attorney does in Scotland

A power of attorney appoints people you trust to make decisions for you if you cannot make them yourself.  Scottish powers of attorney are governed by the Adults with Incapacity (Scotland) Act 2000.

There is no such thing as a lasting power of attorney in Scotland. There are two main types: 

• A continuing power covers property and finances: accounts, bills, benefits, investments, selling a house. 
• A welfare power covers health and personal welfare: where you live, what care you receive, consent to treatment. 

It is possible to incorporate both of these types of powers into a combined power of attorney, which is the best option for most individuals.

A continuing power can take effect immediately or only on incapacity; a welfare power only once capacity is lost.

If you lose capacity without a power of attorney, nobody can simply step in. Not your spouse, not your children. It also surprises many people that "Next of kin" carries no automatic legal authority in Scotland. 

The only route is a guardianship order from the sheriff court, which can be expensive and complex.

While in some circumstances, applications can be rushed through, a normal application may commonly take months, meaning important decisions are delayed.

What is more important, a will or power of attorney?

Neither ranks above the other, because they protect against different risks.

If pressed, many Scottish solicitors would note that a power of attorney is the one people are most likely to need sooner and least likely to have. Loss of capacity is not only an old age issue, and the consequences land on your family while you are still here.

However, if you are unmarried, cohabiting, in a second marriage, a business owner or a parent of young children, the intestacy rules are unlikely to produce the outcome you might have chosen, so skipping writing a will would also be a mistake.

What is better, a will or power of attorney?

Asking what is better, a will or power of attorney, is like asking whether buildings insurance is better than contents insurance. They cover different events, and one does not compensate for the other.

Best practice is to arrange both at the same time. While they are very different documents with different purposes, when someone starts to make decisions about one, they naturally start thinking about the consequences of the other.

In many cases, solicitors will offer a reduced fee for creating both at the same time.

The most important consideration is not to delay the process - seek professional advice before it is too late.