Powers of Attorney &
Guardianship
Donald Winskill, Associate
Elspeth Paget, Partner
19th November 2011
Powers of Attorney:
Questions
'Do you need them?'
'When should you grant a POA?'
'What do they cost to set up / operate?'
'Who should your Attorneys be?'
'What if you don’t bother?'
Alternatives
Joint bank account?
DWP Appointeeship
Application to Public Guardian for 'Access
to Funds'
Intervention / Guardianship Orders
Adults with Incapacity
(Scotland) Act 2000
Introduced new system for:
– safeguarding welfare / managing finances
and property
– of adults (aged 16 or over)
– who lack the capacity to make decision /
take action for themselves
– due to mental disorder or inability to
communicate by any means
What does
'incapacity' mean?
s 1(6): 'Incapable' means incapable of:
– acting; or
– making, communicating, understanding or
retaining the memory of, decisions
by reason of mental disorder or of inability
to communicate because of physical
disability
How does the
2000 Act work?
Enables other people to make decisions /
take action on your behalf, subject to
safeguards
April '01 … April '02 … October '07 …
The Office of the Public Guardian
General Principles
of 2000 Act (1 of 5)
Principle 1: Benefit
The intervention must be necessary and
must benefit you
General Principles
of 2000 Act (2 of 5)
Principle 2: Minimum Intervention
The intervention must be the minimum
necessary to achieve the purpose (ie the
least restrictive option in relation to your
freedom)
General Principles
of 2000 Act (3 of 5)
Principle 3: Your Wishes
Take into account your present and past
wishes and feelings (and try every
possible means of communicating with
you to find out what these are)
General Principles
of 2000 Act (4 of 5)
Principle 4: Consult With 'Relevant
Others'
Take account of views of nearest relative,
primary carer, and anyone with an
interest in – or powers relating to – your
finances or welfare, so far as is
reasonable and practicable
General Principles
of 2000 Act (5 of 5)
Principle 5: Promote Skills
Encourage you to exercise whatever
skills you have concerning your property,
finances or personal welfare, and to
develop new such skills
Prepare for the Future
/ DIY
What can you or your relative do if you
have 'capacity'?
Joint bank account?
Powers of Attorney – just another
'insurance policy'?
Hope it never happens?
Powers of Attorney
Format and implementation procedures
changed on 2nd April 2001. Two new
categories of Attorney recognized:
– Continuing Attorneys – power and control
over property and financial affairs
– Welfare Attorneys – power over care
arrangements, health issues, etc
Creating a Power of
Attorney
When?
Pick 'n' Mix
Must be signed by you and witnessed
Must be certified
Cost
Who should your
Attorney(s) be?
Continuing Attorneys can be individuals,
companies or firms
Welfare Attorneys must be individuals
(eg friends, relatives, members of Family
Support Groups)
Substitute Attorneys
Joint Attorneys
Limitations on your
Attorneys' Powers
Your Attorneys may not:
– make a Will (but could upset your plans!)
– carry out your functions as a Trustee /
Executor
– place you in a hospital for the treatment of
mental disorder against your will
– appoint their own replacements
Implementing
Powers of Attorney
No authority prior to registration
When to register? Risks v hassle
Registration fee
Certificate of Registration
Copies to sender, grantor, notice of
WPOA given to local authority or Mental
Welfare Commission (MWC)
Exercising Powers
of Attorney
Continuing v Welfare
Can a Scottish POA be used in England?
Role should not be purely reactive
Not obliged to invest for maximum profit
Don’t abuse position
Act reasonably, in good faith and follow
General Principles
What if you
become incapax?
Attorney should meet you, your nearest
relative & your primary carer
Review your affairs and needs
Who else has power over your finances?
Any changes actually needed?
Consult with Welfare / Continuing
Attorney(s)
Intervene if needed, keep records
Your Attorneys'
Ongoing Functions
Regular meetings
Remain contactable
Seek advice where required from Public
Guardian / local authority / MWC
Be able to justify actions
Assist with any investigations by
supervisory bodies
Court Proceedings
following Complaint
Sheriff may:
– impose supervision of your Continuing
Attorney by the Public Guardian
– order your Continuing Attorney to submit
accounts to the Public Guardian
– revoke your Attorney's powers
Ending your
Power of Attorney (1 of 2)
Your Attorney may resign
You can (regain capacity and) revoke
If you and your Attorney are married, on
decree of separation, divorce or nullity
Appointment of a Financial or Welfare
Guardian with relevant powers
Ending your
Power of Attorney (2 of 2)
On bankruptcy (of you or your Attorney)
On your death (or recovery?)
Death or incapacity of Attorney
Triggering event occurs / duration expires
/ purpose is achieved
Pre-April 2001
Powers of Attorney
Powers of Attorney signed before
2nd April 2001 = Continuing and/or
Welfare Powers of Attorney
No requirement to register with the
Public Guardian
Non-Continuing
Powers of Attorney
Outwith scope of the 2000 Act, so no
registration necessary, BUT …
– powers would cease upon your incapacity
Registered
Powers of Attorney
Financial
Welfare
Both
Total for Year
2001/02
3,947
197
1,448
5,592
2002/03
6,382
468
3,508
10,358
2003/04
7,554
1,096
5,794
14,444
2004/05
8,044
1,356
8,713
18,113
2005/06
8,062
1,908
12,927
22,897
2006/07
6,626
2,097
17,745
26,468
2007/08
5,617
2,290
24,159
32,066
2008/09
3,059
1,351
26,327
30,737
2009/10
2,706
1,318
34,683
38,707
2010/11
1,879
997
35,809
38,685
53,876
13,078
171,113
238,067
Total
Powers of Attorney:
Answers
'Do you need them?’ Maybe not.
'When should you grant a POA?' Before it’s
needed.
'What do they cost to set up / operate?' Less
than guardianship.
'Who should your Attorneys be?' You choose.
'What if you don’t bother?' Depends what’s
round the corner …
Intervention Orders
Entirely new procedure for 'one-off'
decisions or actions
Duration: until action completed
Examples: signing tenancy agreement;
raising a court action; dealing with an
inheritance; setting up a trust; consenting
to medical treatment
Guardianship Orders
Replacement / extension of the role of
curator bonis
Duration: at Sheriff’s discretion
Examples: selling property and investing /
managing proceeds; making decisions
about care package; deciding where the
person should live
Procedure (1 of 2)
Intervention Order v Guardianship Order
Who can apply? Who can be appointed?
Court application plus three (or five)
reports
Lodge application in time (30-day rule
relaxed since April 2008)
Procedure (2 of 2)
Give notice of proceedings
Sheriff Court Hearing ('closed court')
'Find caution' (discretion since April 2008)
Timescale and costs
Apply three months before 16th birthday;
order effective immediately on attaining
age of 16
Duties of Guardians
Prepare Inventory / Management Plan
Seek consent to a) principle and b) price
of house sale or purchase
Keep records, submit accounts
Keep General Principles in mind at all
times!
Intervention /
Guardianship Orders
Financial
Welfare
Both
Total for Year
2001/02
n/a
n/a
n/a
n/a
2002/03
99
216
29
344
2003/04
335
290
135
760
2004/05
363
370
230
963
2005/06
402
509
264
1,175
2006/07
483
643
366
1,492
2007/08
478
626
515
1,619
2008/09
430
669
567
1,666
2009/10
436
717
644
1,797
2010/11
370
729
753
1,852
3,396
4,769
3,503
11,668
Total
Further Information
Codes of Practice by Scottish Government
www.scotland.gov.uk/Topics/Justice/law/awi
The Office of the Public Guardian
www.publicguardian-scotland.gov.uk
Mental Welfare Commission
www.mwcscot.org.uk
Powers of Attorney &
Guardianship
Donald Winskill, Associate
Elspeth Paget, Partner
19th November 2011