1. Introduction
1.1 Under Part 2 of the Act any person, who has the capacity to do so, may appoint an attorney with powers over property and financial affairs commencing or continuing on into incapacity (referred to as a "continuing attorney"). All Continuing Powers of Attorney granted after 2nd April 2001 are registered with Office of the Public Guardian.
1.2 The Office of the Public Guardian was created by the Act and has wide-ranging powers with regard to property and financial affairs. (See reference section for address etc.)
1.3 It is also possible to grant an attorney with power over personal welfare exercisable only on his or her loss of capacity (referred to as a "welfare attorney"). All Welfare Attorneys are also registered with the Public Guardian.
1.4 The same person can be both a Continuing and Welfare Attorney, and both offices may also be held by separate people.
1.5 Joint Attorneys (i.e. son and daughter) can be appointed, and substitutes may also be appointed.
1.6 Employees of the Local Authority and Health Authority may not act as Attorneys unless they are doing so in a private capacity, and they will not be involved in the drawing up of Powers of Attorney, as this will essentially be a private arrangement between an adult as the granter and a trusted individual as the attorney. It will be strongly advisable for anyone giving his or her Power of Attorney to consult with a private solicitor.
1.7 The local Authority may from time to time be required to supervise Welfare Attorneys under a direction of the Sheriff. (See Supervision Guidelines)
2. Granting Power of Attorney
2.1 Individuals can arrange for their welfare to be safeguarded and their affairs to be properly managed in future, should their capacity deteriorate. They can do this by giving another person, (who could be a relative, carer, friend or professional such as a solicitor), power of attorney to look after some or all of their property and financial affairs and/or to make specified decisions about their personal welfare, including medical treatment.
2.2 As noted above, it is important to know that anyone considering granting Power of Attorney should be capable of doing so, able to understand the proposed powers, and not acting under duress or pressure.
2.3 Any person who is deemed to lack capacity will not be able to grant a Power of Attorney, and in such cases other provisions may need to be considered. The Public Guardian has the power to investigate if capacity is questionable.
2.4 The powers to be granted must be specified in the document conferring Power of Attorney. If a specific power is not included, it cannot be used unless the document is amended before the granter loses capacity. (See the Code of Practice for Continuing and Welfare Attorneys for examples of the kind of powers which may be used).
2.5 Once the Power of Attorney document is agreed, the application is submitted to the Public Guardian who will register it once it is approved.
2.6 The Register of Powers of Attorney is a public document which may be accessed by members of staff who wish to find out if such an Attorney exists.
2.7 A database of Welfare Powers of Attorney is held at Social Work Headquarters, and information can be obtained from this also.
3. Advice and Information.
3.1 Staff may wish to advise families and individuals at an early stage of the possibility of using a Power of Attorney, especially where an adult appears to be having difficulty managing their own affairs. Power of Attorney is a less restrictive alternative because the adult is able to decide for him/herself which powers may be granted.
3.2 Staff will be expected to provide general advice and information relating to Powers of Attorney, which may include advice regarding the powers to be granted.
3.3 However, anyone seeking advice should also be referred to a solicitor and the Public Guardian, and informed about the Code of Practice.
3.4 Once a decision is reached to proceed with a Power of Attorney, a solicitor is responsible for drawing up the document and ensuring the registration procedure is commenced. Local Authority and other staff will not be involved with this.
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