Page 3 - Guide To Powers of Attorney

WHO MAY BE ATTORNEYS?

Being an attorney is a position of absolute trust – so granters should only choose people they trust
completely to be their attorney. Also you should choose a person who has the skills to do the job and is
willing to take on the role. You don’t need to appoint a relative just because they are relatives – they might
not be suitable. Choosing carefully is really important – apart from anything else the attorney may have
important decisions to take on a regular basis. It is only sensible to discuss with your chosen attorney the
role you want them to fulfil. It is also true however that appointing an attorney is a precautionary step and if
incapacity does not arise the attorney will not have to do anything.

You can appoint more than one attorney in one POA document. It is possible and sometimes desirable to
appoint a different person to be the attorney exercising legal and financial powers from the person
exercising welfare powers. You can also appoint joint attorneys or even substitute attorneys. A bankrupt
cannot be a continuing attorney. Quite often someone may appoint a solicitor as the “Continuing” attorney
to deal with their legal issues, and a spouse or close relative to be a “Welfare” attorney to deal with all
personal issues. Attorneys must sign a document effectively confirming they accept the appointment. The
granter can later revoke a power of attorney – effectively withdrawing the powers. Also an attorney can
resign from acting – again in writing. Revocations and resignations are fairly rare however.

DUTIES AND REGULATION

The powers an attorney has will be listed in a schedule in the POA. The attorney will have an obligation to
act using these powers when the need arises. But the attorney’s actions must follow five clear principles.
These are: ‐

Act only for the benefit of the granter.
Use minimum intervention in the adult’s affairs.
Take account of the last known wishes of the adult.
Consult with relevant other parties e.g. carers or close relatives.
Encourage the adult to exercise his or her skills – for example in contributing to decisions to be
made.

Attorneys should act showing due care and skill and should keep relevant records including financial accounts
where appropriate. In dealing with third parties and institutions attorneys will usually be asked for proof of
their appointment and powers – a certified copy of the POA generally being enough.

The overwhelming majority of attorneys act sensibly and in accordance with their proper duties. In addition
to the five principles mentioned above there is a detailed code of practice which guides attorneys and which
the attorney should follow.

There is in place a significant body of regulatory powers which may be used should an attorney act
improperly. Various bodies including the Public Guardian, The Local Authority, the Mental Welfare
Commission for Scotland, the police and courts have powers in this area. In short improper actings may
result in the attorney being removed from office.