The possible abuse of a Power of Attorney by an unscrupulous attorney is a topic which has been hitting the headlines recently and some clients have been asking whether it is safe to grant Power of Attorney. I want to highlight some of the safeguards which exist when you grant Power of Attorney in Scotland (this article relates only to Scottish Powers of Attorney).
Granting Power of Attorney
You will decide who you appoint as your attorney and will decide what powers they should have and the powers will be set out in writing in your Power of Attorney document. When you grant a Continuing and/or Welfare Power of Attorney in Scotland, a solicitor or doctor must witness you signing the document and must complete a certificate confirming you are capable of granting the Power of Attorney. This means that you will have the opportunity to discuss the Power of Attorney with your solicitor or doctor and they can address any concerns you have before you sign it. The solicitor or doctor will make sure they see you on your own to enable an open conversation.
When does the Power of Attorney become effective?
In regard to Welfare Powers of Attorney (being powers relating to your health and welfare), these can only ever be used in the event that you are incapable of making welfare decisions yourself. You can decide how you want that to be assessed. For instance, you may decide that two doctors must certify you as being incapable of managing your own welfare affairs before the welfare powers would begin. Hopefully, this gives you some comfort that no one can make welfare decisions for you while you are capable of making those decisions yourself.
In regard to Continuing Powers (being powers relating to your finances and property), these can be used while you are still mentally capable. However, you would decide when these would become effective and this would be written in to the Power of Attorney document. You might, for instance, decide that the Continuing Powers should be effective immediately and your attorney can then act for you whenever necessary. Alternatively, you may decide that the Continuing Powers should be delayed, but they would come into effect in the event of your incapacity or they could come into effect at some point in the future if you request in writing that they do so.
If an attorney is making decisions for you, they must follow certain principles which are set out in law. In summary, the attorney must ensure that they are acting in your benefit; the action they take must be the least restrictive option available to them; they must ensure that they are taking your wishes (past and present) into account; they must take account of the wishes of any other relevant person, for instance, other family members; and the attorney must encourage you to exercise your own skills in managing your own affairs, where practical.
These guiding principles are a framework that attorneys must act within when considering what actions they should take on your behalf.
What if there is a concern about how the Power of Attorney is used?
In the event that you (or another person connected to you) believe that the attorney is acting improperly, you can report the matter to either the Office of the Public Guardian (in relation to property/financial affairs) or to the Mental Welfare Commission (in relation to welfare matters). These are public bodies with a responsibility to investigate attorneys who are acting improperly. These bodies are also a very useful resource for information and guidance for attorneys.
It may also be possible for the matter to be referred to the Sheriff Court for a Sheriff to make a decision on a matter relating to your incapacity or your Power of Attorney. This would really be a last resort and can, hopefully, be avoided in most cases.
Thankfully, instances of matters being referred to the Court are relatively rare and the Office of the Public Guardian and the Mental Welfare Commission are only involved in a small number of cases where they are required to investigate the attorney.
As you can see, there are a number of safeguards in place when you grant a Power of Attorney in Scotland. With the assistance of an appropriately qualified solicitor, you can put in place a Power of Attorney which meets your requirements and which you feel comfortable with. When used properly, which happens in the vast majority of cases, a Power of Attorney is an invaluable tool for a family member, friend or professional to support you in managing your financial, property and welfare affairs, if you ever do need such assistance.
Head of Personal Law at Gibson Kerr
Lindsay is a Partner and Head of Personal Law Department at Gibson Kerr. She is a member of the Society of Trust and Estate Practitioners and a Full Accredited member of Solicitors for the Elderly. Her work covers an extensive range of personal law matters, including wills, powers of attorney, adults with incapacity and guardianship orders, executory estates and estate planning. Lindsay has a particular interest in dealing with the legal issues affecting elderly clients and can provide advice in relation to the cost of care at home and care home fees.
Gibson Kerr are a small firm of lawyers based in Scotland specialising in the three areas of family law, personal law and property. Their lawyers are experts in their own field with many years of experience and the recognition of training, accreditations, and membership of professional bodies. Gibson Kerr’s approach is get to know their clients well so they can offer a tailor-made service that is best for the client.