A Power of Attorney is a legal authority given by an adult to another person (known as the Attorney) to deal with aspects of their affairs. This could relate to financial/property matters and/or personal welfare. A Power of Attorney (PoA) can only be set up when the person is deemed to have capacity.
In Scotland, a solicitor can assist in drawing up a PoA document. Alternatively, a PoA pack may be acquired from some stationers. The PoA will need to be registered with the Office of the Public Guardian who will check it meets the registration criteria.
Further, detailed information is available from the Office of the Public Guardian’s online information page.
It is important to establish that the person understands the implications of drawing up a PoA and the decisions they wish their Attorney to take for them. They must grant these freely without being subject to undue influence.
PoA may be set up in advance of a person’s capacity becoming impaired. For example, an elderly person concerned about the future may set up PoA well before it may be required ‘just in case’ they may become incapacitated.
Powers relating to the person’s financial/property affairs are known as ‘continuing powers’. These may be implemented immediately if the person wishes. This would enable the Attorney to assist the person with financial matters or take full financial responsibility from the person.
Powers relating to the person’s welfare are known as ‘welfare powers’. Although these powers can be set up in advance of the person needing assistance with welfare matters, they can only be implemented once the person is deemed to have lost capacity. A PoA document may state that PoA can only be implemented if a written medical statement of incapacity is provided.
Once registered, the power of attorney can only be revoked if the person still has the capacity to do so. Otherwise it can only be revoked by applying to the Sheriff. This would require sufficient evidence that the person did not have capacity to create the power of attorney at the time of granting. There are also other circumstances in which the PoA may need to be changed. Please refer to information provided by the Office of the Public Guardian.
Any intervention under a PoA should be in accordance with AWI principles and must:
- Benefit the person.
- Be the least restrictive option.
- Take the person’s past and present wishes into account.
- Consult with relevant others.
- Encourage the person to exercise whatever skills they have concerning their welfare, property or financial affairs.
There are limitations to the powers that can be authorised under Welfare PoA. The PoA does not authorise:
- Stopping the person from leaving their place of residence.
- Carrying out care interventions when the person is clearly resisting (e.g. showering) including use of force or restraint no matter how well intentioned.
If the person subject to Welfare PoA is refusing to cooperate with necessary health, safety and/or welfare supports, alternative legal measures may need to be considered. This may involve use of the Adults with Incapacity Act or the Mental Health Act. Make links. The Welfare Attorney may need to apply for Welfare Guardianship under the Adults with Incapacity Act. This can, in specific circumstances, authorise the use of measures required to overcome concerns around resistance to support for health, safety and welfare (e.g. locking a front door to prevent exit, occasional use of sedative medication and/or restraint when necessary to maintain safety).
Please click on the links below for more information:
Mental Welfare Commission for Scotland Good Practice Guide: Common Concerns with Power of Attorney
Continuing and Welfare Attorneys: Code of Practice (Scottish Government)