Anyone accepting the role of an Attorney is accepting a position of trust.  You have been appointed by the granter of the Power of Attorney (POA) to effectively step in their shoes and make decisions on their behalf when they can no longer do so themselves.  If called upon to take up the role as Attorney any action or decision you take must comply with the guiding principles of the Adults with Incapacity (Scotland) Act 2000:

1. Any action must benefit the granter of the POA;
2. It should be the least restrictive option available;
3. You must consider the granter’s past and present wishes;
4. You must consider the views of relevant others (ie family members, close friends, primary carer or medical professionals); and
5. Encourage the granter to continue to exercise their skills (ie support the granter to make their own decision where possible).

Alongside the guiding principles you should also ensure that:

• You act within the scope of the powers granted to you;
• Keep records of how you use your powers;
• Continuing Attorneys (financial) must keep the granter’s finances separate from their own. Records may be asked for at a point in the future.

Further guidance on these points are detailed in the Codes of Practice for Attorneys or from the Office of the Public Guardian in Scotland. 

As Attorney you have a duty to notify the Office of the Public Guardian in Scotland in writing of any changes.  For example, any change of address of yourself or the granter, if you decide to resign, the death of the granter or if you or the granter have been declared bankrupt, if you and the granter are married and separate or divorce or a civil partnership ends.

Continuing Attorneys (finances/property)

The POA will state when you can start using the POA. 

The POA will detail the powers you have been granted.

You should inform all relevant authorities (i.e. banks, DWP etc.) when you start to act. You will require to provide them with a certified copy of the document and possibly a medical certificate stating the granter lacks capacity (if the POA directs that a medical certificate must be provided).

Welfare Attorneys

Can only start using the powers if/when the granter loses capacity.

The POA will detail the powers you have been granted.

You should inform all relevant authorities (i.e. Doctor, social work, dental surgery, and hospital or care home staff).  You will require to provide them with a certified copy of the document and possibly a medical certificate stating the granter lacks capacity (if the POA directs that a medical certificate must be provided).

Period of appointment

Your appointment will continue until:

• The granter revokes/cancels the POA;
• You resign;
• Granter dies; or
• If Continuing Attorney and you or the granter become bankrupt or are subject to a Protected Trust Deed the continuing powers will lapse.
• If you are married or in a civil partnership and this comes to an end the POA will end unless there is specific provision otherwise stated in the document.

Further information and guidance

You should make yourself familiar with the Codes of Practice.  It is the duty of an Attorney to be proactive in their role, not reactive.

Welfare Attorneys can obtain guidance, advice or support from the social work department of their  local authority or the Mental Welfare Commission for Scotland.

Continuing (financial) Attorneys can obtain general advice and guidance from the Office of the Public Guardian (Scotland).

Should you require specialist legal advice please do not hesitate to contact a member of our experienced Private Client Team who will be happy to help.