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 behalfthe 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
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
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 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 `email@example.com',
or writing to The Office of the Public Guardian, Hadrian House,
Callendar Business Park, Callendar Road, Falkirk, FK1 1XR or visiting
the website at `www.publicguardian-scotland.gov.uk'. The Public
Guardian's Office can assist in difficult cases and investigate
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
(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
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).
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
affairsthat may well be so, but it still illustrates the
need to take prudent precautions when acting, especially as a
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 advicenevertheless
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.
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.