Granting a Power of Attorney is an important step to ensure future decisions taken are the kind of decision you would make should you no longer be able to make them yourself.
What is a Power of Attorney?
A Power of Attorney is a document appointing someone to act as your attorney. Your Power of Attorney empowers your attorney to make decisions for you and to do things that you would or could normally do.
There are different types of Powers of Attorney. Up until the enactment of The Adults with Incapacity (Scotland) Act 2000 you could (and still can) grant a general Power of Attorney. This type of Power of Attorney allows someone to exercise the powers you grant them. Generally, these types of Power of Attorney were used when someone worked or lived abroad and needed someone in Scotland to deal with their affairs in their absence.
As a result of the 2000 Act, two new types of Power of Attorney were created. The first of these is a Welfare Power of Attorney and the second a Continuing Power of Attorney.
A Welfare Power of Attorney allows your attorney to make decisions and to deal with all matters relating to your welfare. A Continuing Power of Attorney allows your attorney to make financial decisions for you. Frequently, these are combined into a Continuing and Welfare Power of Attorney. This type of Power of Attorney empowers your attorney to make financial and welfare decisions for you.
How might a Power of Attorney be misused?
Misuse of Powers of Attorney is rare. However, on occasions, it does happen. The types of misuse might be an attorney in a Welfare Power of Attorney failing to make decisions about the needs and care of the adult who granted the Power of Attorney.
Financial mismanagement or abuse is sometimes discovered by someone holding a Continuing Power of Attorney. These are just two examples of how a Power of Attorney can go wrong.
What can be done if an attorney abuses their position?
Continuing and/or Welfare Powers of Attorney must be registered with the Office of the Public Guardian Scotland to be effective. If there is a suggestion or evidence of financial mismanagement of the adult’s financial affairs, those complaining can lodge a complaint with the Office of the Public Guardian. They have power to conduct an investigation into the financial affairs and application of funds by the attorney to determine if there has been any misuse.
If there is alleged misuse of powers in a Welfare Power of Attorney, a complaint can be lodged with the social work department of the local authority. Such a complaint is likely to lead to an investigation and an intervention to safeguard the adult.
How can you avoid misuse of a Power of Attorney?
Perhaps the first rule in appointing an attorney is to appoint someone you implicitly trust. You do not have to appoint a family member. You can appoint anyone you want provided they are prepared to take on that responsibility.
In addition, you might decide to appoint more than one attorney. You might consider appointing one or more attorneys to deal with your welfare needs and another attorney or attorneys to deal with your financial needs. If there is more than one attorney, you can instruct that decisions must be unanimous.
These are just some of the tactics you might consider when deciding on who to appoint as your attorney.
What are the next steps you should take?
If you are considering granting a Power of Attorney, you should speak to your solicitor about it. They will guide you through the process and give you relevant advice and information.
Our solicitors have years of experience in dealing with Powers of Attorney. Please contact us to discuss how to draw up your own Power of Attorney.
