Adults with Incapacity Amendment Act: consultation

Part 2: Powers of Attorney

How the law presently works

Part 2 of the AWI Act allows anyone to plan their future by giving specific powers to someone they trust to make decisions or take decisions on their behalf. This is known as making a power of attorney. The person who makes the power of attorney is known as the granter and the person appointed is known as the attorney. The granter can only make a power of attorney when they have capacity to understand what it means to grant these powers.

Powers of attorney are powerful and useful instruments that allow a granter to retain control over aspects of their lives, in circumstances where they might not otherwise be able to make decisions or take actions. This ensures that the granter has the opportunity to make provision for a future where they may no longer have the mental capacity to understand what is happening to them. If they have fluctuating capacity a power of attorney allows them to still make autonomous decisions about the things they care about.

The powers granted can deal with financial (called a continuing attorney) or welfare matters (welfare power of attorney). A continuing power of attorney^[19](often known as financial power of attorney, see Part One) can be used as soon as it is registered with the OPG and continue to be used once the granter has incapacity. A welfare power of attorney^[20] allows the attorney to manage the granter’s personal welfare or health matters and can only be used once the granter has lost the capacity to make these decisions. A power of attorney document may set out either continuing powers, welfare powers or a combination of both. An attorney can be appointed to deal with financial and welfare matters or different people.

The process of creating powers of attorney and drawing up the relevant documents usually involves a solicitor, but it can be done without a solicitor. The power of attorney must be in writing and if it is to begin in the event of the granter’s incapacity then the granter must have a statement confirming that the granter has considered how their incapacity is to be determined. The power of attorney document must also include a certificate from a solicitor, member of the Faculty of Advocates or a medical practitioner stating that they have interviewed the granter before signing the power of attorney document. This is to make sure they are aware of the powers they are granting and the effect of what they are doing, and they are not under any undue influence. The power of attorney can only be used once it has been registered with the OPG.

Attorneys are not routinely supervised under the AWI Act but continuing and welfare attorneys are obliged to keep records and receipts whilst undertaking their duties. Anyone with an interest in the property, financial affairs or personal welfare of the granter of a power of attorney can notify the local authority (under our new proposals) of any concerns they have. Where there are concerns about an attorney’s decisions relating to the adult’s welfare, the local authority has a duty to investigate any complaint about how the welfare attorney is exercising their powers, or investigate any circumstances where the adult‘s welfare is at risk^[21]. We are proposing that the local authority can investigate financial matters relating to the conduct of a continuing attorney.

Any interested party or the local authority can apply to the Sheriff where there are concerns about how certain financial or welfare powers are being exercised by an attorney^[22]. The Sheriff has authority to remove some of the attorney’s power or require the attorney to be supervised ^[23].

Summary of changes previously consulted on that we are taking forward

Generally the current system of granting a power of attorney works well, however there have been longstanding views that certain aspects need improving and updating. The SMHLR built upon the 2018 AWI consultation^[24] and set out a series of recommendations to address these concerns. We have considered these and previous stakeholder engagement, consultation responses and will be taking forward changes to:

• Clarify when a power of attorney comes into effect and the attorney can start using their powers. Sections 15(3)(ba) and 16(3)(ba) of the AWI Act which set out that the granter has considered how incapacity can be determined are vague and open to interpretation. It is essential that attorneys understand when they can start acting and how to determine capacity .The current situation can lead to confusion, with attorneys acting upon their powers too early and, in extreme cases, an abuse of power. We propose changes so that a power of attorney document contains clear instructions on how the granter wishes their incapacity to be determined before a power comes into effect.
• Clarify whether a welfare attorney may authorise a deprivation of liberty (DOL). Part 7 of this consultation provides further detail on this.

In addition to these proposed changes to the AWI Act, we are developing work in the following areas:

• We will be working with other agencies in considering different ways in which the cost of a power of attorney may be eased.
• Support training for professionals (for example, care workers, support workers or health care workers) who may need to support adults with incapacity in their work. We wish to ensure that professionals understand the different options available under the AWI Act for taking decisions relating to incapable adults so that these different options, including a power of attorney, are able to be used effectively and correctly. For example, we know that there are some cases where an attorney has not been able to use the powers given to them due to a misunderstanding about the nature and use of a power of attorney. That is why part of our work will be ensuring that professionals understand better when and how these powers can be used for the benefit of the person.
• Increase promotion of taking out a power of attorney. With the prevalence of dementia increasing and our population ageing, power of attorney documents become ever more important in ensuring that people can continue to live the lives they want to. We will increase publicity and awareness for all age groups including the younger demographic and backgrounds. Part of this will include dispelling myths and misunderstandings about powers of attorney.

New proposals for change

The following paragraphs in this part set out new proposals for change around the use of powers of attorney.

Mandatory training, support and guidance for attorneys.

Many attorneys are unaware of the obligations under the AWI Act and what their requirements are in fulfilling the role. In the SMHLR ^[25] it was felt that attorneys receive minimal support and guidance and are not always aware of where to go to receive information. We propose introducing mandatory training for attorneys so that they understand of the requirements of the role and where they can get support in carrying out the role. This is in line with recommendation 13.4 of the SMHLR.

We propose that when attorneys are appointed that they are obliged to undergo a mandatory short introductory training course .This will educate them on their responsibilities, ensure that they understand how the principles of the AWI Act work and enable them to fulfil the duties of the role.

We also want to ensure that attorneys understand the person centred approach of supported decision making and they are familiar with the principles of this. We want them to be able to provide support to granters to assist them to come to a decision that puts their will and preferences at the centre of any decision.

We are envisaging a short, web based presentation easily accessible to attorneys , with clear information on the role of an attorney and where additional help can be found. In checking the attorney’s willingness to act as such, the OPG will check if the prospective attorney has seen this presentation prior to agreeing to take on the role, and if not, will require the attorney to do so prior to registering a power of attorney.

This work will also develop guidance and training for granters so they are aware of the consequences of granting powers and the safeguards in place to ensure attorneys act appropriately.

Enhancing the safeguards around power of attorney

The OPG has a range of functions under the AWI Act. It is responsible for registering powers of attorney and maintaining a Public register of all continuing and welfare continuing and welfare power of attorneys. It also supervises the actions of those appointed in terms of the AWI Act to manage the property and financial affairs of adults who lack the capacity to carry out these functions for themselves and provided advice and support.

We propose giving OPG additional powers to increase the safeguards when registering a power of attorney. Before any continuing or welfare power of attorney can be used it must be registered with the OPG in Scotland. Section 19 of the AWI Act sets out the process that OPG need to follow to register continuing or welfare power of attorneys. This allows the information about the power of attorney to be recorded in public registers by OPG, so that the information about the powers is openly available on the public register.

Currently if there is a dispute around the possible capacity of the granter of a power of attorney OPG have no discretion to refuse to register the case. Competency issues may arise if the evidence presented on capacity is not clear because the sender has submitted capacity evidence but they may be in dispute with a third person who has also submitted their own evidence. In this case there is contradictory evidence presented about capacity issues. and further evidence is needed to clarify and decide the matter.

At present, if there is a properly registrable power of attorney and there is a query about capacity, the OPG pauses registration and submits an application for directions under section 3 of the Act to the Sheriff. This process can average 14 weeks and causes a delay in the process as well as additional expense.

We propose that there should be provision for the OPG to refuse to register a power of attorney if there is a dispute about capacity. OPG should be able to call for additional capacity reports if there is a reasonable cause. This would allow OPG to pause registration and resolve the issue of capacity/incapacity administratively. If OPG refuse to register the power of attorney, then either party will be able to seek directions from the Sheriff themselves for the matter to be determined by the court.

This approach would seem sensible as it would build in greater discretion in the legislation as at the moment OPG have no power under the legislation to refuse to register. This would allow OPG to satisfy themselves if for example there were questions about capacity. It is proposed that section 19(2) is amended to reflect this change.

The same should apply to registration of a revocation notice under section 22A. Revocation means that the granter of the power of attorney can cancel the power of attorney if certain conditions are met and the OPG has to update the register with that information. This shows if power of attorney is active or not.

Section 22A of the AWI Act sets out the process of revocation of a continuing or welfare power of attorney. This needs to be in a written document and must include evidence that the granter was not acting under undue influence and understood the effect of the revocation. We propose that the same changes should apply to a revocation notice as above for registration of powers of attorney. We propose that there needs to be discretion built into the legislation that allows OPG to refuse to register the revocation notice if there is a dispute about the evidence. The OPG should be able to request further information or reports to satisfy themselves that the evidence meets the requirements of the legislation. This means that the changes would allow OPG to pause registration of revocation and refer it to the court for the Sheriff to make the decision if they have any doubts about capacity.

This provides consistency with the process we propose above for section 19 of the AWI Act and allows OPG to undertake their requisite checks by asking for further information. The proposed changes should make the registration more efficient as it saves time in the process and enhances the safeguards around power of attorney.

Investigatory framework

We propose changing the investigatory process that OPG currently undertake. OPG currently have certain statutory powers to investigate an attorney to safeguard financial matters only. We have earlier proposed that the local authority carry out these functions for attorneys. Section 12(1) of the AWI Act sets out that after an investigation OPG may take such steps, including making an application to the sheriff, to safeguard the property and financial affairs of the adult. This may occur if there has been evidence of financial irregularity or bank statements, or other financial information is missing.

The current process is that OPG would need to make an application to the Sheriff under section 20. This sets out that anyone claiming an interest in the property or financial affairs of the adult may make an application to the sheriff under section 20(2)(a) of the AWI Act to request that the Sheriff rules that the continuing attorney be subject to the supervision of OPG. The Sheriff specifies the nature and extent of this supervision.

We propose that the AWI Act is amended to allow OPG to put an attorney under supervision (subject to an appeal to the sheriff), to give directions to an attorney, and to suspend an attorney from acting pending a decision by the sheriff under section 20. OPG can determine the length of time of the supervision. Any decision of the OPG will carry a right of appeal to the Sheriff court.

Giving OPG the power to determine whether they need to supervise an attorney, give directions or suspend an attorney on cause shown after an investigation (by the local authority under our new proposal) rather than needing a court order, creates an immediate safeguard. It also gives the OPG additional powers to deal with any financial irregularities discovered as a result of an investigation by the local authority under our new proposals. We consider that OPG have the expertise and experience to decide such matters. And this change should save court time and strengthen the safeguards around financial powers of attorney.

Increasing accessibility of powers of attorney.

We know from the SMHLR^[26] that widening accessibility of power of attorney is important to increase the uptake of power of attorney documents. We propose to increase the class of persons that are allowed to certify a granter’s capacity in a power of attorney document.

Sections 15(3)(c) and 16(3)(c) of the AWI Act sets out the process that is required to certify both a continuing and a welfare power of attorney. This states that the power of attorney must include a certificate in a prescribed format, confirming that the granter understands its nature and extent. The certificate can only be completed by a practising solicitor who is registered to practice law in Scotland, a UK registered and licensed medical practitioner or a practising member of the Faculty of Advocates as set out in the certification regulations.^[27]

The certification process involves the solicitor, or other prescribed person interviewing the granter immediately before the granter signing the document. They must certify that the granter understood what they were signing. If the granter appears to be failing in capacity, recent medical evidence might be requested. The solicitor or other person acting must also certify they have no reason to believe that pressure or undue influence has been put upon the granter, especially if capacity is declining and they are vulnerable.

To increase accessibility, we propose that the certification regulations are amended to add clinical psychologists to the list of professionals who can complete a certificate confirming the granter has capacity to grant a power of attorney. Clinical Psychologists are mental health professionals who have extensive training in the field of mental disorders and have the knowledge and expertise to undertake this role.

The Law Society of Scotland operates an accredited paralegal status^[28]. Accredited paralegals in Scotland carry out many of the same functions as solicitors and it is suggested that the training they undergo would give them the skills to certify a granter’s capacity for powers of attorney as they work closely under the supervision of a Scottish solicitor, either in private practice or in-house.

We therefore propose also amending the certification regulations to add accredited paralegals to the list of professionals who can complete a certificate confirming the granter has capacity to grant a power of attorney.

Broadening powers of Public Guardian to order compliance with demands in relation to property and financial affairs of the adult.

At present section 64(7) of the AWI Act states:

“(7)The guardian shall comply with any order or demand made by the Public Guardian in relation to the property or financial affairs of the adult in so far as so complying would be within the scope of his authority; and where the guardian fails to do so the sheriff may, on the application of the Public Guardian, make an order to the like effect as the order or demand made by the Public Guardian, and the sheriff’s decision shall be final.”

We think that rather than restrict the Public Guardian’s powers in this area to guardians, they should be extended to attorneys under a power of attorney, interveners and withdrawers (under Part 3). This will assist the Public Guardian in her supervisory duties in respect of these areas and provide greater safeguards for the adult.

We also think the Public Guardian should have wider powers to suspend powers granted to a proxy under section 12 of the AWI Act whilst an investigation is ongoing. Section 12 already allows the Public Guardian, MWC or local authority to take such steps, including an application to the sheriff, which seem necessary to safeguard the property, financial affairs or personal welfare of the adult. The power to suspend powers would be an additional safeguarding option, where even though the investigation is still on-going the Public Guardian is satisfied in the interim that the proxy should not be able to intromit with the estate.

For instance, at the moment the Public Guardian can freeze bank accounts and benefits/pension payments in, but that may still leave other powers the proxy can utilise, for example taking out finance, signing legal agreements and cashing in policies. It is likely that the power would not be used often and practically could only be used if the adult was not living in the community and care or emergency costs were covered by the local authority. This would be appealable to the sheriff.

We are also interested in your views on whether the power to suspend powers should also be available to the local authority and the MWC as part of their investigations.

Questions

13. Do you agree with the proposals for training for attorneys ?

14. Do you agree that OPG should be given power to call for capacity evidence and defer registration of a power of attorney where there is dispute about the possible competency of a power of attorney document?

15. Do you agree that OPG should be able to request further information on capacity evidence to satisfy themselves that the revocation process has been properly met?

16. Do you agree that OPG should be given the power to determine whether they need to supervise an attorney, give directions or suspend an attorney on cause shown after an investigation rather than needing a court order?

17. Should we extend the class of persons that can certify a granter’s capacity in a power of attorney?

18. Do you agree that a paralegal should be able to certify a granter’s capacity in a power of attorney?

19. Do you agree that a clinical psychologist should be able to certify a granter’s capacity in a power of attorney?

20. Which other professionals can certify a granter’s capacity in a power of attorney?

21. Do you agree that attorneys, interveners and withdrawers (under Part 3) should have to comply with an order or demand made by OPG in relation to property and financial affairs in the same way as guardians ?

Broadening powers of the Public Guardian

22. Do you agree that the Public Guardian should have broader powers to suspend powers granted to a proxy under the AWI Act whilst an investigation is undertaken into property and financial affairs?

23. Do you agree that the MWC and local authority should have broader powers to suspend powers granted to a proxy under the AWI Act whilst they undertake an investigation into welfare affairs?