HM Insights

Power of Attorney & the authority to benefit others

Does an attorney have authority to benefit others when acting under a Power of Attorney?

The Court of Protection in England recently ruled on whether an attorney acting under a Lasting Power of Attorney could legitimately use a donor's funds for the benefit of someone else. The case in question relates directly to English law, but provides some useful guidance for attorneys acting within Scotland.

Power of attorney in Scotland

Details of the case  

The Office of the Public Guardian sought clarification from the court on the validity of various Lasting Powers of Attorney. The documents contained expressions by the donors that their attorneys should use their funds to benefit someone else. The majority of the intended recipients were family members, and in one case the person to receive the benefit was also the appointed attorney.

The court considered the best interests test closely in reaching its decision. This dictates a decision can only be made on behalf of a person lacking capacity if it is in their best interests. The court highlighted the purpose of this test was to consider matters from the protected person's perspective. The scope of this principle was deemed wide enough to include altruism, and to extend beyond simply an expectation on a donor to meet another person's needs.

The court's decision

The instructions to attorneys to use funds for the benefit of others were deemed to be valid. The decision highlighted an attorney's authority to benefit others was not absolute as it was still subject to statutory limits on gifting. The court also emphasised the best interests principle only places a duty on an attorney to consider the wishes, feelings, values and beliefs of the protected person. It does not require an attorney to give them effect, and there may be cases where it is not in the best interests of the protected person to do so.

What is the role of an attorney in Scotland?

Attorneys can be appointed to act on another person's behalf to manage their affairs and to make decisions when they are no longer able to do so. In Scotland, there are three types of Power of Attorney:

  1. Continuing (Financial) Power of Attorney – for financial matters
  2. Welfare Power of Attorney – for making medical and welfare decisions
  3. Combined Power of Attorney – a combination of both the above

An attorney must follow certain principles when acting on behalf of an individual. Any action or decision must be made for the benefit of the adult in question, and should only be taken when such benefit cannot reasonably be achieved without the intervention. Any intervention should also be the least restrictive option in relation to the freedom of the adult. An attorney should take account of the present and past wishes and feelings of the adult, as far as can be ascertained; and should consult with the nearest relative of the adult, or relevant others to establish their views. The adult should also be encouraged to exercise their own skills, and to develop new skills in relation to their property, financial and welfare affairs.

Get in touch

It is strongly recommended to have a Power of Attorney in place. The consequences of losing capacity without having a valid Power of Attorney can be far reaching, and are best avoided. Please be in touch if you wish to discuss a Power of Attorney in more detail. 

Useful links

POWER OF ATTORNEY              

MAKING A WILL IN SCOTLAND

CARING FOR THE ELDERLY