Andrew Paterson, a Partner with Murray Beith Murray, writes in the Scotsman (6 August 2018)
“Will my Attorney blow all of my life savings on a round the world holiday?” and “How do I ensure my Attorney doesn’t send me to a nursing home I detest?” are just some of the questions that solicitors preparing Powers of Attorneys are all too accustomed to hearing. Those who grant Powers of Attorney should ensure that they are aware of the duties and responsibilities their chosen Attorneys have. Similarly, anyone agreeing to act as an Attorney should first reflect upon the full implications of taking on that role.
Attorneys should be people that an individual knows well and trusts implicitly. Attorneys are granted extensive powers and are often left making very personal and sometimes difficult decisions on behalf of the granter. This article will look at the main responsibilities of an Attorney in Scotland and the concept behind these responsibilities.
Generally speaking, a Power of Attorney is a legal document appointing trusted persons (Attorneys) to have almost all the powers an adult has to deal with the adult’s property and finances and to make decisions in relation to the adult’s personal welfare, if the adult is unable to make those decisions for themself, for example, if they are mentally incapable of doing so due to an illness.
A Power of Attorney cannot be used until it has been registered with the Office of the Public Guardian (OPG) Scotland. The OPG have a style ‘Attorney Declaration Form’ which they recommend that Attorneys complete and sign before the Power of Attorney can be registered. This form lists all of the responsibilities and duties to which an Attorney must adhere.
Attorneys are in a position of trust and have an overarching duty not to take advantage of that position. The main responsibilities are set out in the Adults with Incapacity (Scotland) Act 2000.
1 Minimum intervention – The Attorney should not intervene in the affairs of the adult unless such intervention will benefit the adult and that benefit cannot be reasonably achieved without the intervention.
2 Least restrictive option – Such intervention must be the least restrictive option in relation to the freedom of the adult and should be consistent with the purpose of the intervention.
3 Consult with appropriate people – In determining if an intervention is to be made and, so far as is reasonable, the Attorney should take account of the present and past wishes of the adult and the views of others such as close relatives or carers.
4 Encourage adult’s involvement – The Attorney should encourage the adult to exercise whatever skills they have concerning their property, financial affairs or personal welfare, so far as they are able to do so.
Attorneys must also keep appropriate records of all financial decisions made, as well as consult and respect the extensive Code of Practice for Attorneys.
These principles illustrate the OPG’s wish for there to be a move towards ‘supported decision-making’ as opposed to ‘substituted decision-making’. Individuals are encouraged, where possible, to make their own decisions and express their preferences. Attorneys are there to facilitate this.
Mental capacity is not always a clear-cut concept and can come and go. The OPG recognise this and understand the benefits of supported decision-making, to protect the individual’s autonomy and make decisions with which they will ultimately be happy.
So when solicitors are asked “Will my Attorney blow all of my life savings on a round the world holiday?” or “How do I ensure my Attorney doesn’t send me to a nursing home I detest?”, they can point their clients in the direction of the legislation and reassure them that they will always have a voice.
Andrew Paterson is a partner with Murray Beith Murray