Protecting the Vulnerable – Policing Powers of Attorney

David Borrowman from Caesar and Howie discusses some of the issues brought up by clients considering granting Powers of Attorney. Some clients worry about granting a Power of Attorney.  Sometimes a client will say “I wouldn’t trust X to look after my affairs properly.“  It is easy to deal with that – in such a case under no circumstances should X be appointed as an attorney.  There is no entitlement to be appointed someone’s attorney just because of a blood relationship.  So if clients have unreliable relatives they just should not appoint the relatives as attorneys.  The whole idea of appointing an attorney is to give powers to someone to act for your benefit and your benefit alone – consequently if a client has any doubts as to the integrity of the person to be appointed – the appointment should not be made. Assuming a satisfactory person is found, clients can be reassured that person cannot simply do what he or she likes with the affairs of the incapacitated person. Attorneys are bound by a strict code of law laid down in the Adults with Incapacity Scotland Act.  Of course they should only act, at all, if the person who made them their attorney is for some reason (usually but not always illness) not capable of dealing with things himself or herself.  And when an attorney does act he or she must adhere to five principles laid down in the Act.  Simply put these are:  1. There must be no intervention unless for the benefit of the adult – “adult” being the name used for the incapacitated person in the Act.  2. Any intervention must be the least restrictive option in relation to the freedom of the adult.  3. Account must be taken of the present and past wishes of the adult.  4. Account must be taken of the views of others, eg the nearest relative or primary carer.  5. The attorney must encourage the adult to exercise whatever skills he or she has with respect to property etc. In common sense terms being bound by these principles the attorney I suppose has to exercise his powers effectively acting in the way the adult would have acted had the adult not lost capacity. Should an attorney breach the principles in the Act or act improperly then the Act does allow for robust sanctions.  The Public Guardian, the Mental Welfare Commission and Local Authorities and indeed any person claiming an interest in the affairs of that adult can apply to the court to safeguard the property, financial affairs or personal welfare of the adult.  The sheriff then has significant powers to resolve matters including placing that attorney under supervision of the Public Guardian, requiring accounts and reports to be submitted to court, even as far as revoking the appointment of the attorney.  On top of all that of course criminal law could come into play if an attorney used his powers to affect a criminal act. In short there is in place a significant body of law designed to protect a vulnerable adult against an attorney acting improperly – clients can be reassured on that point. However, the main consideration in choosing an attorney is the honesty and integrity of that person.  Powers granted to such a person can make families’ lives so much easier should incapacity strike.