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Role of an Attorney

Help! Aunt Maggie has asked me to be her attorney. What do I need to know?

In Scotland now, many people are granting Continuing and Welfare Powers of Attorney in favour of people whom they trust in order to allow their financial and welfare interests to be looked after, should they lose capacity.  The governing legislation is based on the Adults with Incapacity (Scotland) Act 2000.  For a Continuing and Welfare Power of Attorney to be valid, it has to be registered with the Office of the Public Guardian.

An attorney is often at a loss as to what he/she should be doing.  Very useful reference is found in the Code of Practice published by the Scottish Government in March 2011 and which can be found on the Office of the Public Guardian Scotland  website.

An attorney may have financial powers.  Once the Power of Attorney is registered, if required, the attorney may attend to financial matters even if Aunt Maggie is still “with it”.  Quite often, elderly people find dealing with modern technology, even press button options on a phone, impossible to deal with, so, if the Power of Attorney has been registered with the institution, the attorney can deal with matters.

If, however, Aunt Maggie has become incapable of dealing with her affairs, perhaps due to dementia or a stroke, the attorney may have to be more proactive. 

When exercising the attorney’s role, the attorney should remember the principles of the Act i.e. to follow the least restrictive option and to take into account  past and present wishes of the Adult.

A Power of Attorney is interpreted quite strictly so, if the document does not have specific reference to the task which is requiring to be carried out, it should be considered very carefully and, indeed, may not be able to be implemented.  On all occasions, the attorney should not benefit himself or herself unless this is expressly allowed.   

The Act requires financial attorneys to keep records and to exercise reasonable care in dealing with matters.  An attorney should be proactive e.g. if there is maybe £200,000 sitting in a current account, steps should be taken to invest this properly.

Welfare powers are only to be exercised if the Adult loses the capacity for that particular decision. An Adult may be quite capable of dealing with daily life but may not have the capacity to grant consent eg for a medical procedure.  It is important that the attorney has the Adult’s interest to the forefront  and makes any decisions purely for his or her benefit.  These should be recorded.

If in doubt at any stage, consultation may be made with the Office of the Public Guardian or in the case of a welfare attorney, the Mental Welfare Commission or local authority. 

Gillespie Macandrew are proposing to run a seminar/workshop later in the year providing advice to attorneys on their role.  If you would be at all interested in attending this please contact Elspeth Paget.

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