A Continuing and Welfare Power of Attorney (‘POA’) is something that every adult should have. A POA enables the appointment of a trusted person of our choosing to deal with our affairs if we should become incapable of doing so personally in the future. If we do not make a POA and we lose our capacity the Court will decide who will deal with our affairs, and this often involves long delays and great expense.

The person making a POA is called a Granter and the person who is appointed to act is called an Attorney. To ensure that a POA provides adequate powers for an Attorney to act in all situations it will usually be very widely drafted. The flexibility that this confers makes it desirable for the actions of an Attorney to be overseen in cases where a third party is concerned about the exercise of powers.

In order to safeguard a Granter their Attorney must observe certain principles set out in the Adults with Incapacity (Scotland) Act 2000 and in a Code of Conduct issued by the Scottish Executive in 2001. These include the following key principles and guidelines:

1) Any decision taken or intervention made must be for the benefit of the Granter.

2) The intervention should be the least intrusive and restrictive in the circumstances.

3) It is necessary to take into account the known past and present wishes of the Granter.

4) Certain third parties must be consulted when acting (eg the Granter’s primary carer).

5) The Granter’s skills, training and education should be encouraged.

An Attorney should also be careful to keep the Granter’s assets and finances separate from his or her own, and keep records of all transactions. The court is able to investigate the conduct of the Attorney and if necessary intervene, or even remove the Attorney from office, in appropriate circumstances.

Chris Wallace will be making a presentation on POAs at our offices at 28 Queensgate Inverness at 1pm – 2pm on 26 June 2015, which is free of charge and sandwiches and refreshments will also be provided. Places are strictly limited and his presentation on this topic last year was over-subscribed, so if you are interested please contact us as soon as possible to reserve your place.

If you have any queries regarding the issues referred to in this article please contact Chris Wallace in our Private Client Department.

June 16, 2015