Powers of Attorney
What are Powers of Attorney?
Powers of Attorney enable you to support someone who has capacity as defined in the Adults with Incapacity (Scotland) Act 2000. They must appoint you to act on their behalf. It could be to help them now, e.g. to make and communicate decisions they find difficult, or to assume responsibility if they lose capacity in future.
There are two categories: Continuing Attorney (covering property and financial affairs) and Welfare Attorney (covering care arrangements and health issues). You can be appointed an attorney for either, or both.
Who sets up Powers of Attorney?
Powers of Attorney are usually drawn up by a solicitor who is instructed by an individual, to ensure they get the support they need. You don’t have to have additional support needs – any adult can grant Powers of Attorney to relatives or friends, at any time, so long as they are considered to have capacity to understand the documents.
Some charities will draft Power of Attorney documents, and DIY kits also exist. However a solicitor, legal advocate or doctor must sign to certify the person’s capacity. A solicitor may refuse to do this if they have not been involved in the preparation of the documents.
You can’t set up Power of Attorney on someone else’s behalf – they have to do it themselves.
Powers of Attorney are valid once they are registered with the Office of the Public Guardian.
Who can be an attorney?
Anyone the individual chooses. Attorneys must be over 16 and willing to take on the role. There is no limit to the number of attorneys someone can appoint.
Attorneys can resign, or the individual who set up the Power of Attorney can change their mind and remove them. If a financial or welfare guardian is appointed, they override a Power of Attorney where powers overlap.
Continuing (financial) attorneys can be individuals or organisations, e.g. a firm of solicitors. Welfare attorneys can only be individuals.
What are the duties of an attorney?
Attorneys are expected to act reasonably and in good faith, and to follow the General Principles. They should be responsible, contactable and keep records of their actions.
The relationship is largely one of trust, but there are formal procedures if attorneys are thought to have acted inappropriately. There are also some limitations, for example attorneys may not make a Will for someone, vote on their behalf, or appoint replacements.
What is the process of setting up Powers of Attorney?
- Choose a solicitor, with experience of the law as it applies to people with additional support needs.
- Be clear about fees. Don’t be afraid to ask questions, and shop around as the costs can vary.
- Discuss with the solicitor what should be included in the Power of Attorney document. Many have standard templates, but these can be tailored – e.g. to exclude certain actions, or to specify under which circumstances an Attorney can act. Changing a template may incur an extra cost.
- Agree the final form of words. When this is done, the individual signs the document in the presence of a witness and a doctor or solicitor, who certify they understand what Power of Attorney means and are acting of their own free will.
- The solicitor registers the document with the Office of the Public Guardian. This must be done before Attorney(s) can act on someone’s behalf.
When should you apply?
Anyone over 16 can grant Powers of Attorney, at any time, so long as they have capacity.
