Case Study

Your Appointment as a Continuing and/or Welfare Attorney

Friday 12th February 2010

What is a Power of Attorney?

A Power of Attorney is a legal document giving you, as attorney, legal authority to act on behalf of the person who grants the Power of Attorney. Your authority cannot commence until the Power of Attorney deed has been registered with The Office of the Public Guardian and in order to register the deed, you have to sign a registration form confirming that you are willing to act as attorney.

 

Once the deed is registered, you will have immediate authority to act on behalf of the person granting the Power of Attorney in relation to their financial and property affairs. However, you will need to exhibit the deed to banks, building societies etc, with your own ID before you will be able to access funds. You will not be able to act on behalf of the granter in relation to personal welfare matters until the granter is unable to make such decisions for himself.

 

What powers do I have?

You will have powers in relation to the granter's financial and property matters, or powers in relation to personal welfare matters, or both, depending on whether you have been appointed as the granter's Continuing Attorney, Welfare Attorney or Continuing and Welfare Attorney. The Power of Attorney deed itself will outline the specific powers which you have been granted; examples include power to deal with the granter's bank accounts and to make decisions on his care and accommodation (once he has lost capacity to make such decisions himself).

 

Is there anywhere I can refer to for guidance when acting as Attorney?

The Adults with Incapacity (Scotland) Act 2000 introduced the concept of continuing and welfare Power of Attorney deeds, and sets out five principles which Attorneys must adhere to when making decisions on behalf of the granter:-

 

  • 1. Any decision or action taken must be for the benefit of the granter;
  • 2. Any action taken should be the least restrictive option;
  • 3. The Attorney must take into account the granter's past and present wishes so far as these are known;
  • 4. The views of the Adult, his nearest relative, primary carer, Attorney or any other interested person must be taken into account when making a decision or taking an action on the granter's behalf; and
  • 5. Wherever possible, the granter should be encouraged to exercise any skills he has in relation to financial/property matters and personal welfare.

 

Your duties as Attorney

When acting as an Attorney, you must keep records of how you exercise your powers. In particular if you have been appointed as the granter's Continuing Attorney, you must keep the granter's financial affairs separate from your own as the Public Guardian may request records from you in the future. In addition, you must notify the Public Guardian if you or the granter change address, if you decide to resign as Attorney, if the granter dies or, when acting as a continuing attorney, if you are declared bankrupt.

 

More information

This note is a summary only of the duties involved when acting as Attorney. Should you wish more detailed information, please contact our Private Client Department:-

 

Isabel Ewing Tel: 0141 221 5562, Email: iee@tcyoung.co.uk

Lesley Hurst Tel: 0141 221 5562, Email lah@tcyoung.co.uk

 

You should also consult the Scottish Government's Code of Practice for Continuing and Welfare Attorneys, available for download from The Office of the Public Guardian's website:-

http://www.publicguardian-scotland.gov.uk/

 

Alternatively, hard copies can be requested from the Public Guardian's office - 01324 678300.