So you have now been appointed to act as an Attorney. This short guide sets out what the first steps are to acting as an Attorney, and your duties.
I have now been appointed – what now?
The first thing to do is read the Power of Attorney document that appoints you. This is a very important document, and you should get familiar with its terms as it confirms:
- If you have been appointed as the only Attorney, or appointed alongside other Attorneys, or if you are a substitute Attorney. If you are a sole Attorney, you can make decisions on your own. If you are a joint Attorney, you will have to consult and agree on decisions with the another appointed Attorneys. If you are a substitute Attorney, you can only act if the main Attorney has resigned or can no longer act;
- The powers that have been granted to you. Please note that you only have the powers that are listed in the Power of Attorney document; and
- When you can use those powers. “Welfare” powers can only be used if the person who granted the Power of Attorney no longer has the ability to make those decisions. The Power of Attorney will set out what you need to do to satisfy yourself that they have lost capacity, e.g. you may need a certificate from a medical practitioner confirming that this is now the case.
Similarly, the “financial” powers may only take effect if the granted loses capacity to make those decisions. In some cases, the financial powers can take effect as soon as the Power of Attorney has been registered with the Office of the Public Guardian. This would allow an Attorney to help the granter, with their consent, deal with their finances whilst they still have capacity.
Dealing with third parties
When you are acting as Attorney on behalf of the granter, you will no doubt be dealing with various third parties. These can include the banks, pension companies, utility companies, doctors, dentists, etc. The third party will usually need to see the Power of Attorney which has appointed you, and the Certificate of Registration from the Office of the Public Guardian, to prove that you can act and to allow you to carry out your role.
The Five Principles to Consider in Every Decision
The law has set out five principles which you must follow when you are acting as an Attorney and making decisions. It is important that you follow them. They are:
- Any action you take must benefit the granter;
- Any action taken should be the minimum necessary to achieve the purpose and represent the least-restrictive option;
- You must take into account the wishes or last known wishes of the granter;
- You must consult and take into account the views of others such as the nearest relatives and primary carers of the granter when making decisions;
- You must encourage the granter to exercise any skills they may still have in making their own decisions or contributing to your decision making.
You must keep records of how you exercise your powers. We would recommend that you keep written records about these decisions, including who you consulted, what was discussed and why you decided what you did.
You should also keep records of all financial transactions undertaken. If you are acting as a Financial Attorney then you must keep the granter’s money and property separate from your own.
Code of Practice for Attorneys
We would recommend that you become familiar with the Code of Practice provided by the Scottish Government. This can be found at: https://www.gov.scot/publications/code-practice-continuing-welfare-attorneys-second-edition-updated-february-2018/
For more information about setting up Power or Attorney, please contact our By Your Side team. We provide a wide variety of ways to contact the team and our opening hours span more than the usual 9-5 – so you can get in touch at a time and in a way that suits you.