Guide to Granting Power of Attorney

The value of granting a power of attorney cannot be overestimated. We are all living longer. When we are young and have a young family, we have no difficulty in accepting that it is appropriate to arrange life insurance to provide protection to our families in the event of early and untimely death.
Similar considerations apply throughout life and in particular when we are older, to the granting of a power of attorney. Granting a suitable power of attorney can mean that our families avoid the horrendous difficulties that can arise where an individual loses capacity.

In such circumstances, and if no suitable power of attorney is in place, the financial and business affairs of that person can be impossible to manage in the short term. If a loss of capacity is permanent, then the family of that person will require to go through the complicated, long winded and expensive process of having a financial guardian appointed. This can be avoided if the older person has granted a power of
attorney.

The granting of a suitable power of attorney will allow speedy and appropriate intervention on their behalf. The power of attorney will remain in full force and effect, notwithstanding the supervening incapacity of the granter. It can allow the attorney to take part in the process of deciding what care etc. will be appropriate for the older person.

All powers of attorney granted after April 2001 require to be registered with the Office of the Public Guardian. The Public Guardian is the official who has responsibility for overseeing the actings of Attorneys.
• The Public Guardian can ask an attorney to provide an accounting for his or her actings and, in a bad case, can seek the removal of an attorney who is considered to have misbehaved.

The responsibilities of the attorney

Any individual who accepts appointment as attorney takes on weighty responsibility and, on occasions, an onerous task. The attorney requires to comply with the principles set out in the 2000 Act as also with The Code of Conduct put together by the Scottish Government.

Anyone appointed as an attorney should familiarise himself with both of the same. If he fails to comply with the Principles/The Code of Conduct and is also negligent, he could, at least in theory, be found liable in damages to the granter or to the executors of the latter.

It is only fair that the attorney should be made aware that his task may not be an easy one and it is important that the attorney should be aware of the degree of responsibility and, indeed, the possible liability which he may be taking on. This cautionary note is not intended to dissuade individuals from accepting office as an attorney – an attorney who acts properly, adhering to the Principles and the
Code of Conduct, and taking appropriate legal advice when required, has nothing to fear.

Acting as an Attorney

The message is simple — where you have been appointed to act as attorney, this appointment is intended to be in the best interests of the person who appointed you — they have put their full faith and trust in you and they expect you to act appropriately, in their best interests, in taking into account the Principles of the
Code of Practice which are, after all, conceived for the benefit of elderly/vulnerable individuals.

We have specific and recommended power of attorney for clients. The granting of a power of attorney is a protective step. It is not of itself a necessary acknowledgement of incipient inability. The document need not come into effect immediately, and can in fact be “postponed” until the granter has lost capacity.

• Our styles of powers of attorney contain very wide powers. No one can predict the future or the circumstances which might apply at the relevant point in time. Given that one should only appoint another party to act as attorney if they have full faith and trust in that person, there is no point in limiting the attorney from the outset.

The “welfare” powers contained in the document allow the attorney to take part in the relevant decision making process regarding the care etc. of the granter of the power of attorney. These welfare powers will not be available unless specifically included in the relevant document. We would be happy to answer any queries which you may have in relation to our above comments, or with regard to the format of power of attorney which we as a firm have adopted.