Continuing and welfare attorneys: code of practice

Chapter 2 - Creating a power of attorney

What is a power of attorney?

2.1 A power of attorney is a document appointing someone to act for the granter and to make decisions on behalf of the granter. The person who grants the power is known as the 'granter' and the person appointed is the 'attorney'. Anyone concerned to make plans for the future should consider making a power of attorney. A power of attorney can be useful both for someone anticipating permanent incapacity or to deal with periods of temporary incapacity. This could be relevant to someone with a fluctuating condition. ^[3] In this chapter 'you' refers to 'you' as the granter. However this chapter is also relevant to the prospective attorney – to understand the requirements for creating a valid power of attorney.

2.2 Powers of attorney can deal with financial and/or welfare matters.

2.3 A continuing power of attorney is a power over the granter's property or financial affairs which is intended to continue, or, (where so specified) to start, to have effect in the event of the granter's becoming incapable in relation to decisions about the matter to which the power of attorney relates.

2.4 A welfare power of attorney relates to decision making in relation to the granter's personal and health care and can only come into effect on the onset of incapacity in relation to the powers granted.

2.5 The granter can appoint the same person to deal with financial and welfare matters, or different people. Many welfare decisions have financial implications, e.g. where someone should live, so if there are two or more attorneys they need to co-operate.

2.6 You may wish to engage an appropriate professional to draw up your power of attorney, such as a solicitor, or do so yourself. The OPG website provides information on power of attorney documents: http://www.publicguardian-scotland.gov.uk/power-of-attorney/power-of-attorney/the-power-of-attorney-document, including a typical example.

Statutory requirements for making a valid power of attorney

2.7 The following statutory requirements apply to the creation of power of attorney document:

• a power of attorney must be expressed in a written document;
• the document must be signed by the granter; and state clearly that the powers are continuing or welfare or a combination of both;
• a power of attorney must contain a statement to the effect that the granter has considered how his/her incapacity should be determined where the authority of the attorney commences on incapacity;
• it must incorporate a certificate in the prescribed form by a practising solicitor, a practising member of the Faculty of Advocates or a registered and licensed medical practitioner which certifies that he or she:
  • has interviewed the granter immediately before the granter signed the document;
  • is satisfied, either because of knowledge of the granter or because of consultation with another person who has knowledge of the granter, that at the time of granting the power, the granter understands its nature and extent; and
  • has no reason to believe that the granter is acting under undue influence.

2.8 The Act does not specify how the certificate should be 'incorporated', but the Public Guardian has indicated that she will accept a certificate that is attached to the power of attorney document in the same manner as all other pages of the document itself. This is likely to mean stapled in the vast majority of cases. The certificate is prescribed by the Adults with Incapacity (Certificates in Relation to Powers of Attorney) (Scotland) Regulations 2008.

2.9 The person being granted power of attorney cannot also be the person who signs the certificate described above. However if the prospective attorney is a solicitor in a firm, another solicitor in the same firm may sign. Where the firm itself is being appointed the continuing attorney, it is good practice for the certifier to be someone independent of the firm.

2.10 Attorneys have no authority to act until the power of attorney document has been registered by the Public Guardian. (Whether or not the powers can be exercised thereafter will depend on the terms of the power of attorney, i.e. whether the granter has included a 'springing clause' that is a clause specifying an event that must happen before the attorney can act, e.g. an assessment of incapacity by a medical practitioner).

Who can be an attorney?

2.11 You are free to choose whomever you want to be your attorney. However, you will wish to bear in mind that an attorney has a position of trust and should be someone who is competent and reliable. He or she should have the skills and abilities to carry out the necessary tasks.

• A welfare attorney can only be an individual.
• A continuing attorney can be an individual or firm, e.g. of solicitors.
• you can appoint a combination of both individuals and professionals.

2.12 An individual cannot act as a continuing attorney if he/she is bankrupt at the time of the appointment or thereafter. If you become bankrupt, your continuing power of attorney will be terminated. People who are bankrupt can still act as a welfare attorney. If you become bankrupt, this will not affect your welfare power of attorney.

Solicitors or organisations as attorneys

2.13 A continuing attorney could be a body such as a firm of solicitors or accountants, or a financial institution or a voluntary organisation. Where the continuing attorney is not an individual, it is good practice for an individual to be identified as having particular responsibility for performing the functions of attorney.

Appointment of joint or substitute attorneys

2.14 You should also consider the question of whether you wish to appoint more than one attorney. You may appoint:

• separate attorneys to exercise functions in relation to property and financial affairs and in relation to personal welfare;
• joint attorneys with similar or different powers;
• one or more substitute attorneys to take the place of an attorney who dies or resigns.

2.15 You cannot give your attorney/s the right to appoint a substitute or a successor.

Possible powers to be included in a continuing power of attorney

2.16 You should try to foresee all the property and financial affairs which may need to be managed in the event of your incapacity. You should discuss with the prospective attorney and any professional you have engaged the extent of powers which you wish the attorney to exercise. These could include in particular power to:

• purchase or sell heritable property (land or buildings);
• open, close and operate any account containing your funds;
• claim and receive on your behalf all pensions, benefits, allowances, services, financial contributions, repayments, rebates and the like to which the you may be entitled;
• have access to financial information concerning you, such as the amount of funds you hold in an account;
• deal with your income tax;
• make any alimentary payments to your spouse and/or children for which you may be liable;
• pay your household expenses;
• invest your savings in interest bearing accounts; bonds; stocks and shares or any other form of investment; stating any restrictions such that investments must not be in stocks and shares or must only be in ethical investments;
• make gifts on your behalf, including any limits on the size of such gifts or the potential recipients;
• run, sell or wind up any business you own;
• purchase out of your income or capital a vehicle or any other equipment which may be required for your benefit;
• pay for private medical care and residential care costs;
• borrow money on your behalf and to repay the interest and capital o n any loan taken out by you or by the attorney on your behalf;
• agree to any common repairs or improvement scheme in respect of which you are still liable and to defray the expenses thereof from your income or capital;
• pursue, defend or compromise any legal action on your behalf involving a claim for property or money;
• pay for you to go on holiday and for the expenses of any accompanying carer or for respite care;
• pay your attorney/s or other agents fees and expenses associated with the exercise of their functions;
• receive, renounce or vary any testamentary or other entitlements; grant deeds of covenant, or make any other provisions from your estate;
• set up any form of trust;
• have access to confidential financial information to which you would have been entitled to have access;
• have access to confidential information about your will.

2.17 The attorney may not need to exercise all the powers that you grant. Either the occasion may not arise to exercise particular powers; or he/she may find that when the principles are applied the exercise of the powers would not be justified. The important point is that you try to foresee the powers which may be required to meet your needs.

2.18 It is advisable for you to discuss your feelings and wishes regarding the exercise of your powers with your prospective attorney. For example do you have any views about what type of investments you would wish to make or avoid? Do you have views about remaining in own home as opposed to moving into residential care? do you wish any particular property to be safeguarded as inheritance for a particular person? Do you attach sentimental value to any particular property? If you would want your attorney to consult with others (for example with any of your children or other relatives) you should declare this in the power of attorney document.

Possible powers that may be included in a welfare power of attorney

2.19 You should try to foresee all the welfare decisions which may need to be taken in the event of your incapacity and discuss these with the prospective attorney and any professional you have engaged. These could include power to:

• decide where you should live;
• have access to your personal information held by any organisation;
• consent or withhold consent to medical treatment for you, where not specifically disallowed by the Act, i.e. your attorney cannot place you in hospital for the treatment of mental disorder against your will; nor consent on your behalf to certain medical treatments specified in regulations. With regard to other treatments, the doctor responsible must obtain consent from your attorney, where it is reasonable and practicable to do so. Arrangements are set out in the Act for obtaining a second opinion where the attorney and doctor disagree. Even where your attorney and the doctor agree, the Act gives a right to 'any person having an interest in the personal welfare of the adult' to appeal to the Court of Session about the medical treatment in question. For full details consult the Part 5 Code of Practice 'For persons authorised to carry medical treatment and research';
• consent to participation in research, in accordance with safeguards set out in Part 5 of the Act;
• pursue, defend or compromise any legal action on your behalf involving your personal welfare;
• provide access for medical treatment, dentistry, etc. where this will benefit you;
• make decisions on your diet, dress and personal appearance;
• make decisions on social and cultural activities that you may pursue;
• arrange for you to undertake work, education or training;
• decide with whom you should or should not consort;
• take you on holiday or authorise someone else to do so;
• have access to confidential documents or information relating to you where you would have access to such documents or information on a personal basis, such as access to medical records or personal files held by social work services.

2.20 Note that these are only examples of powers that might be included. In any particular case, some powers may be inappropriate and others may need to be added.

Involvement of prospective attorney at time of granting

2.21 Although there is no requirement for you to gain the agreement of the person you wish to become your attorney, the Public Guardian will have to be satisfied when she comes to register the power of attorney that the person named is prepared to act. Therefore, it is good practice for you to discuss with the person what being an attorney involves. It will be helpful if you keep a note of the matters discussed at this time and for the prospective attorney to have a copy. This is because there may be a long interval of time before the power needs to come into operation (if at all).

2.22 The purpose of the discussion is to ensure that:

• you and the prospective attorney have the same understanding about what you want to happen in the event that you become unable to make decisions or act for yourself at some point in the future;
• you offer sufficient powers to ensure that your attorney can do what you would wish;
• you make your wishes and feelings clear;
• you provide the prospective attorney with sufficient information regarding your financial circumstances: income, liabilities and assets; existing arrangements; where certificates, titles, records, papers, etc are kept; particulars of professional advisers, etc; details such as income tax office and national insurance number; and the people who should be consulted about the exercise of your powers;
• it is clear whether you want a continuing power of attorney to be exercisable immediately ( i.e. before incapacity) or only to start at the onset of incapacity.

If you are appointing a welfare attorney you should ensure that he/she knows your likes and dislikes and personal welfare concerns fairly thoroughly. In the course of your discussions you and the prospective attorney might cover the following issues, preferably not on a single occasion, but in the course of building up your relationship of trust:

• views as to how you would like to be cared for if the expected arrangements break down, or if you become unwell;
• hobbies and activities and the places you like to visit and the social groups you enjoy being part of;
• particular dislikes and activities, places or people you would prefer to avoid;
• medical history and any particular medical problems which require treatment or could require treatment in the future; regular supply of medication for any condition, such as asthma or high blood pressure;
• medical treatment information, where present treatment (if any) takes place and the names of the medical practitioners; particular dental, eyesight, hearing, orthopaedic or other problems which will require specialist attention;
• particular close relatives and friends with whom you would like to keep in touch;
• issues surrounding family relationships as relevant;
• views about the need to attend particular events such as weddings, funerals, or celebrations surrounding the birth of a child, in relation to any particular family member or friend; views about issues such as, for example, where and with whom to spend Christmas or other regular festivals;
• holiday preferences and about particular concerns such as burning easily, inability to swim, fear of animals, etc.;
• your personal preferences regarding diet, dress or appearance that you would wish to have respected;
• continue with a particular religious affiliation or keeping in touch with any particular member or members of faith groups.

This list is not comprehensive. It is a guide as to the kind of issues that arise in people's lives at some time and which you may wish to consider in drawing up your power of attorney.

Granting sufficient powers for an attorney to act

2.23 You have wide powers to grant whatever powers you choose. Powers are strictly interpreted, which means that when it comes to legal interpretation of the powers granted there is no possibility of deducing implied powers. You need to be sure that, while capable, you give the necessary powers. However, that does not mean that all possible powers have to be spelled out in detail. It can be fully effective, for example, to confer 'the whole powers in relation to my property and financial affairs which can competently be granted upon a continuing attorney, without limitation', if that is what you want. It is also possible to grant much more limited powers if you wish.

2.24 If a long interval is likely to elapse between the original grant, and the time of your incapacity, it will of course be possible to hold further discussions to review the original grant. It is good practice for you to hold further periodic discussions with the prospective attorney to ensure that the powers granted remain appropriate and sufficient. For example if you acquire significant investments since the original grant, you may want to grant a prospective continuing attorney additional powers to maintain or reinvest these investments.

Registering a power of attorney

The information about registration is provided in the OPG's Guidance Notes on Registering Powers of Attorney available on request from the Public Guardian's office or download from OPG website www.publicguardian-scotland.gov.uk See Annex 2.

Costs of acting as an attorney

2.25 There is no provision in the 2000 Act for reimbursement of a welfare or continuing attorney. If you wish to allow your attorney to claim fees and/or out of pocket expenses in relation to his or her functions as an attorney, you may make provision in the power of attorney for this. In the case of a continuing attorney who is a professional person, such as a solicitor or accountant, the power of attorney is likely to make express provision for the deduction of fees and expenses.

Revocation (cancellation) of a power of attorney

2.26 You (whilst you are capable) may revoke (cancel) the power of attorney (or any of the powers granted by it) after the document conferring the power of attorney has been registered, by giving notice in writing to the Public Guardian.

2.27 A revocation notice is only valid if it is expressed in a written document.

2.28 The document must be signed by the granter.

2.29 It must incorporate a certificate in the prescribed form by a practising solicitor, a practising member of the Faculty of Advocates or a registered and licensed medical practitioner which certifies that he or she:

• has interviewed the granter immediately before the granter signed the document;
• is satisfied, either because of knowledge of the granter or because of consultation with another person (whom he or she names in the certificate) who has knowledge of the granter, that at the time the revocation is made the granter understands its effect; and
• has no reason to believe that the granter is acting under undue influence.

2.30 On receiving a revocation notice, the Public Guardian shall:

• enter the details in the register maintained by her;
• notify the continuing or welfare attorney; and
• where it is a welfare attorney who is notified, the local authority and the MWC.

2.31 You can revoke the power of attorney originally registered with the OPG and register a new one at the same time (for details see the OPG's Guidance Notes for Registration).