We often hear of the importance of having a Power of Attorney in place but not so much about the duties involved in being someone’s Attorney. It may be flattering to think someone trusts you enough to ask you to be their Attorney but there are certain responsibilities to be taken into account when accepting such a role.
Here are some questions I am frequently asked.
Who can be an attorney?
Attorneys in Scotland must be aged 16 or over. In the case of a Continuing Power of Attorney they also cannot be bankrupt. If these conditions are met, and the person is willing to act, they can be a relative, friend, solicitor, spouse or partner.
How many types of attorneys are there?
There are two types of Attorney in Scotland:
- A Continuing Attorney who has authority to manage the granter’s financial and /or property affairs
- A Welfare Attorney who has authority to manage matters relating to the granter’s personal welfare
You could be appointed as a sole or a joint Attorney. As a joint Attorney you could be required to make decisions along with other attorneys. You could also be appointed as a substitute Attorney and will only be able to act if a sole Attorney is no longer able to do so or if they have resigned their appointment.
What are my duties as an Attorney?
Being appointed as an Attorney is a position of trust and an Attorney must not take advantage of that position. Your duties are:
- You must ensure that every measure is taken to support the granter of the Power of Attorney (PoA) to make their own decision on any matter or otherwise to allow them to exercise their legal capacity.
- You must ensure that any decision made on behalf of the granter respects their rights, will and preferences and takes account of any known wishes and feelings, past or present.
- You will have and must maintain communication with relevant parties and take account of their views.
- You will act within the scope of the powers granted to you.
- You must keep records of how you use your powers. Continuing Attorneys must also keep the granter’s financial affairs separate from their own.
- You must also notify the Public Guardian about certain events, such as changes of address, the death of the granter or bankruptcy.
- Beyond such principles, your rights and responsibilities will depend on the PoA document itself.
For more information please see the Code of Practice for Continuing and Welfare Attorneys. https://www.gov.scot/publications/code-practice-continuing-welfare-attorneys-second-edition-updated-february-2018/