You have been appointed as a continuing (financial) attorney and now require to use your powers.   Any actions taken by you or decisions made by you should comply with the guiding principles  of the Adults with Incapacity (Scotland) Act 2000 and you should look at the Codes of Practice for Attorneys in Scotland. 

Your duties:

1. Ensure the Power of Attorney document has been registered – it requires to be registered to be invoked.
2. Capacity is decision specific. You should first ensure the granter lacks capacity to make the decision.
3. Where possible you should support the granter of the Power of Attorney to make their own decisions and respect their rights, will and preferences.
4. Read the Power of Attorney document – ensure you are aware of the powers you have been granted. You must only act within the scope of the powers granted to you.
5. Communicate with relevant parties. This may be the granter of the Power of Attorney, their spouse/child or other relative, a joint Attorney or others.
6. Keep appropriate records. You may be called upon to produce accounting and/or a record of your decision making in the future.
7. Ensure the granters funds are kept separate from your own.
8. You must not take advantage of your position. Acting as an Attorney is a position of trust. You have a duty of care to act in a certain way in exercising the powers you have been granted. 

Good practice:

When you require to step in to act as Attorney it is good practice to meet with the granter (and any relevant others) as soon as practicable after you require to step in and act.  If a meeting is not possible, for example due to a family member living abroad, you should write to them explaining you now require to action your powers and how you propose to go about your duties. 

You have reviewed your powers – you should now review the granter’s financial matters (over which you have power) and take any action you feel appropriate (following consultation with relevant others).  You may wish to advise relevant others that you are undertaking a review and may need their co-operation. 

It would be good practice to advise the Adult (and any relevant others) of any changes to the Adult’s current arrangements and confirm to them you will keep them informed.

You should review the position at appropriate intervals – this will vary on a case-by-case basis but it may be appropriate to do so at least twice per year.  At review, you should consult with the granter (as far as possible) and any other relevant parties.

Following review, you may require to take action or make a decision on the Adult’s behalf. It would be helpful to make a note of the date of your review, your findings, what decisions or actions you have considered, and actions or decisions taken.  Again, any decision made at review you should be able to exhibit that you have applied the guiding principles. 

Should you be unsure about a particular action or decision you can take advice from a solicitor or, where appropriate, seek a direction from the Sheriff of the Local Sheriff Court.  Our dedicated team are happy to assist.