Select Committee on Assisted Dying for the Terminally Ill Bill Minutes of Evidence




  It has been settled law since Roman times that if you know what you are doing you can give someone a mandate to carry out certain acts on your behalf—the problem was that up until about 10 years ago if you reached the stage where you could no longer understand the management of your affairs, the authority which you had granted to other people to assist you fell, the rationale being that the authority to act could only subsist while you actively wished it to be in place.

  On 31 January 1991, the law changed to allow powers of attorney to continue in existence notwithstanding the supervening incapacity of their grantors, and at that point people began to confer upon their attorneys powers to deal with their welfare in the event of them losing mental capacity. Under the current regime set up by the Adults with Incapacity (Scotland) Act 2000 these powers of attorney count only as so-called continuing powers of attorney, which basically deal with your property and financial affairs only. New powers of attorney which are intended to continue after supervening incapacity are governed by this Act. The Act set up a new form of mandate, called welfare powers of attorney dealing with welfare matters and created a new public authority to supervise the use (among other things) of both the new types of Power, called the Office of the Public Guardian.

  It has to be borne in mind that you need to have full capacity to understand what you are doing when you grant a power of attorney. However, a decline or partial loss of capacity does not mean that it is completely impossible to grant the power, because the law accepts that people can have periods of lucidity. Having said that, however, anyone granting a welfare or continuing power of attorney has to be certified by someone such as a solicitor, advocate or registered medical practitioner as understanding the nature and extent of the document in question, and the person so certifying cannot be one of the attorneys. It is open to the person making the certificate to say what other people he or she has consulted in coming to their views.

  Needless to say, it is probably wise to ensure that your attorney's powers are as wide as possible. If the attorney is not acting within the terms of the power, there could be a range of problems with members of the family and other people, including the possibility of action taken after the death of the granter.

  Welfare powers of attorney, as we say in the law, are "creatures of statute" and accordingly in order to be effective they need to comply with all the statutory requirements, including a meticulous adherence to the forms of certificate laid down under subordinate legislation. This means that the certificates cannot be amended except in the areas and in the manner laid down, sections you might feel are irrelevant cannot be omitted, they have to occur at the end of the document and you will need two certificates if the same document is to serve as both a continuing and a welfare power of attorney. Some other bureaucratic points arise with regard to the registration forms, being sure not to omit dates of birth, postal codes, relationships (if any) to the attorneys and so on. You should also know that there is a statutory obligation on executors to inform the Public Guardian if an attorney dies.

  One of the things to bear in mind is that it is not legally possible for people other than named individuals to be appointed as welfare attorneys. Another is that while you might want to name a number of people as potential attorneys acting on a joint and several basis it might be prudent to say whose view is to prevail in the event of disagreement.

Action areas for Welfare Attorneys

  Examples of areas which might be covered by a welfare power of attorney include:—

    —  Assessing your accommodation and facilities as being suitable for your current conditions. Is your accommodation comfortable, private, warm and adequately ventilated?

    —  What would make it easier for you to dress independently?

    —  How are you supplied with meals, are they adequate, and do they meet your dietary requirements?

    —  Are the cleaning arrangements adequate?

    —  What activities could or should you engage in at a day centre or otherwise, what hobbies or interests are catered for, and do friends or relatives call?

    —  What about holidays?

    —  Religious considerations.

    —  What is the diagnosis, likely development, and longer term prognosis of any illnesses?

    —  What about reasonable amounts of personal dignity and privacy?

  It will be necessary for a welfare attorney to liaise with whoever has financial authority to act for the granter. It will also be necessary to liaise with the local authority in relation particularly to community care services, and while the local authority normally has no supervisory duty over welfare attorneys they do have if the attorney does not have a sufficient authority to act and a welfare guardian is appointed.

Registration with the Public Guardian

  The Public Guardian is likely to be an increasingly-important official and his office has already produced a huge quantity of material. This is available on CD-rom by telephoning 01324 678300, or faxing 01324 678301, e-mailing him at `', or writing to The Office of the Public Guardian, Hadrian House, Callendar Business Park, Callendar Road, Falkirk, FK1 1XR or visiting the website at `'. The Public Guardian's Office can assist in difficult cases and investigate complaints.

  In order to come into effect, welfare powers of attorney and continuing powers of attorney need to be registered with the Public Guardian and it is one of his requirements that any person called to act as an attorney should signify agreement to act by signing an official form to that effect. Examples of the form are available on the internet, and copies can be provided. You are, inter alia, supposed to put your and the attorneys' dates of birth, post codes, and ethnic origins on the form.

  The Act also allows for other people to seek appointment as so-called "welfare interveners", but it is surely much better to decide for yourself whom you would wish to act for you.

  Modern government is obsessed with bureaucracy and you should be aware that once the welfare power of attorney has been registered (which it has to be in order to become effective), the Public Guardian will send copies of the power to yourself and the attorneys (if requested), and all of you are supposed to notify any changes of address to the Public Guardian's Office.

  Because of the bureaucracy involved, many people would say that unless you already have in place a pre-Act Power of Attorney, it would make a lot of sense in financial matters to have a non-Act power of attorney (operative only while the granter has mental capacity) as well as a welfare power of attorney and continuing power of attorney which would take effect once or if the grantor has become incapax. The non-Act powers of attorney do not need to be registered with the Public Guardian and there is a strong school of thought that the continuing and welfare powers of attorney should not be registered until they are required, simply being kept in a safe place or registered in the Books of Council and Session until the need arises.

  However, if registration is delayed until then, the requirements for registration may have changed and the forms which you have signed under the current regime or whichever one is in force at the time the powers of attorney is granted may have been changed. In that case, it may not be possible to register the power of attorney, and without registration, it is worthless. This is an argument which the Public Guardian puts forward in favour of early registration, and if there are errors in the power of attorney or application form, it will be too late to do anything about them. Registration is covered by Section 19 of the Act, and the cost of doing so is currently £35.

  If you have given instructions that the welfare power of attorney is only to be registered in the event of you actually becoming incapax, the fact of this incapacity will need to be proved to the Public Guardian.

  Whether or not a Power of Attorney is to be registered with the Public Guardian at the time of granting of when it is needed is up to the granter. It can be registered in the Books of Council and Session for preservation as an interim measure, and the Public Guardian would need to accept an official Extract (including the certificate) if that was the course of action decided upon.

The principles to be employed

  A fundamental point of the 2000 Act is that if you are actually acting as an attorney for an adult with incapacity you are required to do so in accordance with the following principles:—

  1.  The intervention will benefit the incapable person (whom we shall hereafter refer to by the shorter technical Latin description of incapax) and the benefit cannot reasonably be achieved without the intervention.

  2.  The intervention needs to be the least restrictive option available, given the condition of the incapax.

  3.  Account has to be taken of the following views:—

     (a)  the past and present feelings of the incapax;

     (b)  the nearest relative and primary carer, so far as reasonable and practical;

     (c)  any attorney or other person who has powers relating to the act proposed;

     (d)  anyone whom the Sheriff directs should be consulted;

     (e)  any other person who appears to the person effecting the intervention to have an interest.

  4.  The incapax is to be encouraged to exercise whatever skills remain concerning the management of property, financial affairs or personal welfare.

  Some of these principles may at times be in conflict and if you are the attorney, it will be your primary job to strike the right balance.

The code of practice

  There are a lot of codes of practice issued under the 2000 Act, and there is a code of practice for continuing and welfare attorneys brought into force under Section 13. The Code of Practice is 76 pages long and anyone acting as an attorney might find it appropriate to read this and/or ask their solicitor for a synopsis.


  The code of practice is voluminous and full of advice, not all of which may be practical. It advises, on an attorney becoming aware of the adult's incapacity, that a meeting take place between the adult, the nearest relative, anyone nominated by the Sheriff to act in place of the nearest relative, the primary carer, any other attorneys and "any other person with an interest in the welfare of the adult or an assistant adult to express his or her views", while any one of those not attending the meeting should be written to explaining the position to all affected.

  The purpose of the meeting is said to be to explain the scope of the powers, and to discuss how you as attorney will go about your job (such as clarifying whether you would like regular meetings and if so with what frequency).

Record keeping

  Section 22 of the Act provides that attorneys appointed under it require to keep records of the exercise of the powers. Such record keeping will not automatically be examined as a matter of course but the maintenance of a good file is said to be a useful prophylactic against all kinds of unwelcome attention in the future.

  The file might contain, for instance, a note of the name, address and other contact details of doctors and social workers providing care services to the adult and also details of any professional advisers you will be dealing with such as accountants and solicitors. Apart from correspondence and notes of meetings and phone calls, full financial and accounting records should be maintained.

Views taken account of

  If decisions are taken, you should record the adult's present feelings and wishes and how these have been indicated. You are also supposed to encourage the adult to exercise whatever skills he or she has and any intervention must be the minimum necessary. This will depend upon the circumstances of the case.

Acting in good faith

  Concerns have been expressed that it would be unethical or even illegal to involve the full range of persons mentioned in the code with regard to the administration of someone's affairs—that may well be so, but it still illustrates the need to take prudent precautions when acting, especially as a welfare attorney.

  Nevertheless, Section 82 of the Act provides protection for breaches of duty if an attorney has acted "reasonably and in good faith" and in accordance with the general principles derived from Section 1, as mentioned earlier.

Obtaining confidential information

  It would be prudent to include in your welfare power of attorney authority for your attorney to obtain confidential information, such as details of the treatment which you have been receiving. If the attorney cannot obtain the information because inadequate powers have been conferred on him/her, the attorney might refer the matter to the Public Guardian or seek an intervention order under the Act.

Coping with disagreement

  If you are acting as an attorney and find people in disagreement with you, the code suggests that you should direct them to your statutory responsibilities as attorney, to the powers that the grantor has conferred, and that the grantor has chosen to confer these powers on you.

  It will assist you if you can show that you have applied the general principles systematically, that you have balanced one principle against another, that you have taken account of the past and present wishes and feelings of the incapax and, if necessary, that you have taken legal advice—nevertheless you may find in the end that you simply have to insist. The code says that "if you are confident in your judgement, do not back down. You would be letting the adult down if you gave in for the sake of peace, or stood down, leaving the adult with no-one (or someone other than you, whom the adult chose) to take care of their affairs. Also, you can exercise your own right to apply to the Sheriff for directions under Section 3(3)".


  Unlike traditional Powers of Attorney, which could be hard to relinquish, the power granted under the 2000 Act can be resigned.

  Where a Welfare Attorney wishes to resign and the document conferring the Power of Attorney has been registered, this must be done in writing and intimated to the granter, the Public Guardian, any guardian or, where there is no guardian, the granter's primary carer and the Local Authority where they are supervising the Welfare Attorney. Resignation will not take effect until the expiry of 28 days from intimation to the Public Guardian. If a joint Attorney is willing, however, to continue to act or any substitute Attorney is willing to act, resignation will be effective upon submission of evidence to that effect.


  Another feature of the 2000 Act Powers of Attorney is that the Act provides for them to be terminated in a number of circumstances. Basically, these are:—

    —  Where the Granter and Attorney are married to each other, upon the granting of a decree of separation or divorce to either party or a declaration of nullity of marriage, unless the Power of Attorney deed states otherwise,

    —  On the appointment of a guardian with powers relating to those conferred in the Power of Attorney.

Further advice

  You may feel that the above comments are sufficient for your present needs, but if you wish further information and advice our Private Client Team at Biggart Baillie will try to answer any questions you may have.

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