Powers of Attorney are growing in popularity. Over 300 new applications are processed every day in Scotland and there has been a 53% increase in demand over the past five years.
Yet, despite this, in a BBC interview last week Denzil Lush, a former senior Court of Protection judge in England, said he would never sign one himself. He cited a lack of transparency and accountability, as well as stating concerns about insufficient safeguards due to there being no general supervision of attorneys, with the Ministry of Justice only investigating once they have been alerted that there may be an issue.
Alongside this, the story of Frank Willett, a war veteran who was exploited by his neighbour after appointing him as his attorney, has featured in the news.
Despite Judge Lush's concerns, Powers of Attorney are growing in popularity for a reason and it's important to note that there are fundamental differences between the Scottish system and the English system that was criticised by Judge Lush.
What is a Power of Attorney?
A Power of Attorney is a legal document that allows you to appoint one or more people to make decisions on your behalf. The document specifies the powers that you give to your attorneys and there are three different types of Power of Attorney:
- General: usually created for a set amount of time or for a specific issue, for example if you are living abroad.
- Continuing: created to allow the attorney to manage your financial affairs or property. It can be granted to take effect either immediately or in the event that you lose capacity to handle matters yourself.
- Welfare: enables the attorney to make decisions about your health and welfare, such as medical decisions. These powers cannot be exercised until you become incapable of making such decisions yourself.
The most common form is a combined Continuing and Welfare Power of Attorney that deals with both your financial and welfare affairs in one document. You can appoint anyone over the age of 16 as your attorney, provided that they are willing to act and have not been declared bankrupt. Your attorney should be someone you trust. Your attorney could be your spouse/civil partner, your children, a family member, a friend or a solicitor.
Are there really risks?
The system in Scotland is different to that in England and Wales, so many of Judge Lush's criticisms do not apply. Following the interview, the Office of the Public Guardian (OPG) issued a statement setting out the differences between the two systems and pointing out the higher levels of protection offered in Scotland.
Some of the differences are as follows:
- In Scotland there is greater scrutiny at the start of the process. This is because a Power of Attorney is usually drafted by a solicitor, who will have a detailed discussion with the granter about the document to ensure they understand it.
- Crucially, an 'assessment of capacity' is required: a doctor or solicitor must certify that the granter is aware of the nature and effect of the Power of Attorney, what powers they are granting and to whom, and that the granter is not being unduly influenced or pressured to act.
- A Power of Attorney will also be explicit in the powers it grants. All of this strongly contrasts with the English system, where draft Powers of Attorney can be downloaded and completed without any professional involvement.
There are other, similar, safeguards that are present in both systems: the OPG maintains a register of attorneys, is able to remit any concerns to the court and can receive reports and inquire into an incapable person's financial affairs where they appear to be at risk.
The safeguards ensure that the Scottish system is robust and secure. Stories like Frank Willett's are exceptional, and the chances of it happening under the current system are low. Most Powers of Attorney work perfectly and are highly useful in facilitating the care of those without capacity.
What are the benefits of a Power of Attorney?
The key benefit of a Power of Attorney is that it is a straightforward way of ensuring management of your affairs. The process is not difficult and gives you a lot of control. You can choose who to appoint, and the extent of the powers they will have. You can choose someone who knows and understands what your wishes are.
There is a common misconception that your next of kin, particularly a spouse, will automatically be able to manage your affairs should it be necessary. Unless a Power of Attorney is set up, nobody has automatic authority to make decisions on your behalf should you become incapable of doing so. If you have not granted a Power of Attorney before you lose legal capacity, it can be difficult to manage your affairs. Someone will need to apply to the court for a Guardianship order to give them the authority to act on their behalf.
Judge Lush said that rather than granting a Power of Attorney, he would prefer the English equivalent of this, which is known as Deputyship.
However, there are many downsides to a Guardianship. The process of appointing a Guardian can take a long time (7-12 months) and can be both emotional and stressful for those involved. It is also incredibly expensive, with costs often running to thousands of pounds for set up and annual expenses. The Court will decide how long the Guardianship order lasts, and it often needs to be renewed every three years. Fundamentally, it is the Court, rather than you, who decides who is suitable to be appointed. All of this can easily be avoided with a Power of Attorney.
Responsibilities of an Attorney
If you are appointed as an attorney you must first confirm that you are willing to act for the granter. As an attorney you will have various duties and responsibilities. These include keeping records of the exercise of your powers, keeping the granter's financial affairs separate from your own and notifying the OPG in certain circumstances such as changes of address or if you decide to resign. The Scottish Government provides a code of practice for continuing and welfare attorneys which should be followed.
Additionally, the Adults with Incapacity (Scotland) Act 2000 provides that certain principles must be observed when exercising powers on behalf of someone else:
- No action should be taken unless it will benefit the granter.
- Any action that is taken should be the least restrictive option; intervention should be as minimal as possible.
- The past and present wishes of the granter should be taken into account.
- The granter's views and the views of others with an interest (such as carers and family members) must be determined before making any decision.
- The granter should be encouraged to exercise their skills as far as possible in managing their affairs.
What should you do?
Granting a Power of Attorney in Scotland is an excellent, effective and straightforward way to plan for future management of your affairs. The benefits far outweigh the pitfalls. It's worth bearing in mind that Judge Lush will generally only see cases where Powers of Attorney go wrong and not the vast majority that work well.
If you would be interested in a Power of Attorney, Harper Macleod has one of the largest and most experienced teams of lawyers in Scotland, with offices in Glasgow, Edinburgh, Inverness, Thurso and Lerwick. Our team has more than 25 years’ experience working with clients on creating and enforcing Power of Attorney rights.
Get in touch
If you have an issue in relation to a Power of Attorney please get in touch with a member of our team.