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Power of Attorney: Your questions answered

Power of attorney legal discussion

In a previous blog, we discussed what a power of attorney is and why you should have one, however, we are often asked what considerations do Attorneys have to take into account when making decisions under a Power of Attorney in Scotland, and what happens if you do not have a Power of Attorney in place?

What considerations do Attorneys have to take into account when making decisions under a Power of Attorney in Scotland?

When making decisions and/or taking any action relating to you or your affairs, your Attorney must act in accordance with your best interests, taking into account your past and present wishes, along with the wishes of your nearest relatives and your primary care giver. You should also be encouraged to manage your own affairs whilst you are still able to make your own decisions regarding your property, financial affairs and personal welfare.  Even after your ability to manage your affairs deteriorates, you should still be involved and there should be minimum intervention by your Attorney, they should only intervene as far is as necessary to ensure your best interests are served.

How are these principles upheld in practice?

The Office of the Public Guardian in Scotland (OPG) is the governing body responsible for regulating the Power of Attorney documents, and overseeing the Attorneys.  The OPG has a code of practice which recommends that Continuing (Financial) Attorneys should keep accounts of all expenditure, and should keep your property or money separate from their own.  A Welfare Attorney should keep records of all matters relating to your personal welfare, for example, your care plan from the Social Work Department, along with a note of special events relating to welfare, such as illness or accidents etc.

If someone is concerned by the way in which your Attorney is exercising their responsibilities, they can refer the matter to the Public Guardian’s Office for investigation.  If your Attorney has applied the code of practice correctly, kept proper records and accounts, then they have nothing to fear from any potential enquiry. 

What happens if you do not have a Power of Attorney in place?

If you have lost capacity and there is no Power of Attorney in place, a Guardian may have to be appointed by the Court to deal with your welfare and perhaps, your financial  requirements.  This is an expensive and time consuming procedure.  In order to obtain a Guardianship order, certain professionals have to provide reports all within specific timescales as part of the court process. These reports go in to significant detail about your personal affairs and once lodged at court, essentially become public documents.

Anyone with an interest in your welfare or finances may also apply to the Court for an Intervention Order, whereby the Court would appoint and authorise one or more specified persons to carry out the specific task, or make a certain decision on your behalf.  This Intervention Order only lasts as long as it takes to carry out the specified task, or to implement the decision made.

Applying for an Intervention Order may be just as costly as applying for Guardianship and still involves a public Court process.  Putting a Power of Attorney in place eliminates these hurdles and is your opportunity to nominate and appoint who you would wish to act on your behalf, should you lose capacity, or simply require some assistance dealing with your affairs as you get older.

Whilst putting a Power of Attorney in place involves a fee, it allows you to nominate and appoint who you would wish to act for you.  With Guardianship or Intervention Orders, the costs are far greater, the process more extensive and ultimately the person appointed may not necessarily be the person whom you would have appointed had you been able to do so.

Putting a Power of Attorney in place, is much simpler, quicker and less expensive than a Guardianship or Intervention Order. To discuss putting yours in place, get in touch with Stacey Jackson, Solicitor in the Private Client team.  Call us on 01382 229111 or any other member of the private client team.

About the author

Stacey Jackson
Stacey Jackson

Stacey Jackson

Solicitor

Wills, Trusts & Succession

For more information, contact Stacey Jackson or any member of the Wills, Trusts & Succession team on +44 1241 436013.