Murray Beith Murray LLP is a leading Scottish private client law firm.
For 175 years we have specialised in meeting the legal, financial and administrative needs of individuals and families, family trusts, charities and private companies.
Murray Beith Murray LLP is a leading Scottish private client law firm.
For 175 years we have specialised in meeting the legal, financial and administrative needs of individuals and families, family trusts, charities and private companies.
When you grant a Power of Attorney, the aim is to appoint an attorney you can trust. You expect your attorney will make the kind of decisions you would make but no longer can. In life, however, things do not always turn out as planned and, on occasions, it can be difficult to prevent misuse of a Power of Attorney.
The Adults with Incapacity (Scotland) Act 2000 introduced two new types of Power of Attorney – the Welfare Power of Attorney and the Continuing Power of Attorney. One of the reasons these types of Power of Attorney were introduced was that many traditional Powers of Attorney ended when the granter became incapacitated whereas the new types of Power of Attorney do not.
A Welfare Power of Attorney, as the name suggests, gives the attorney power to make decisions on the welfare of the granter, whereas a Continuing Power of Attorney gives the attorney power to make financial decisions on behalf of the granter. Frequently, these Powers of Attorney are combined into a single Combined Welfare and Continuing Power of Attorney. This allows the attorney to deal with both welfare and financial matters on the granter’s behalf.
Unfortunately, sometimes things go wrong leading to the attorney abusing or misusing their position. In relation to the granter’s welfare, this might mean refusing to make decisions relating to the care and wellbeing of the granter or making decisions to the granter’s detriment. In relation to the granter’s finance, this might mean applying the granter’s money to the wrong things or, in a worst-case scenario, using the granter’s money for the attorney’s personal needs.
Provisions contained in the Adults with Incapacity (Scotland) Act 2000 mean that should a Welfare attorney abuse or misuse their powers, a complaint to the local authority social work department may lead to intervention by that department. They have the capability to step in and deal with any complaint to safeguard the granter of the Welfare Power of Attorney.
In respect of financial matters, a complaint made to the Office of the Public Guardian (Scotland) can result in an investigation into the abuse or misuse of the financial powers granted to a continuing attorney.
The overriding consideration when granting a Power of Attorney is whether you can trust your attorney. This can be challenging when the person you wish to appoint would make all the right decisions for you in relation to your welfare but is hopeless when it comes to money and finance. You know you can trust them to deal properly with your care and wellbeing but you might be worried that they would make disastrous decisions about money!
On the other hand, you might have total trust in someone to manage your financial affairs correctly and prudently but not be entirely sure whether that person fully understands your personal care and welfare needs. Alternatively, the person may be so focused on ensuring your finances are in order that they overlook or do not pay sufficient attention to your care and welfare needs.
One of the key things you should consider that might put your mind at ease is to appoint more than one attorney. If you decide to do this, you might appoint one attorney to handle all the decisions relating to your personal care and welfare and the other to deal with your financial requirements. Alternatively, you might give them equal powers on the basis that the attorney who you trust to look after your welfare will make the right decisions in that area whilst the attorney who you trust to look after your finances will make all the right decisions in that area.
When you are thinking about drawing up a Power of Attorney, please make sure you discuss this with your prospective attorney in advance. Tell them what you would like them to do and discuss different scenarios so that you know they are of a similar mind as you when faced with making decisions. After all, these decisions will impact on you when you are no longer able to make them yourself.
Finally, if you want to discuss drawing up a Power of Attorney, speak to your solicitor. Your solicitor has a wealth of experience advising clients who wish to draw up Powers of Attorney and all the issues that can arise.
If you are thinking about drawing up a Power of Attorney, please contact us.
Murray Beith Murray Partner, Andrew Paterson, specialises in succession and estate planning, and is an expert in Will writing. If you would like to discuss any of the issues covered in this article, or if you require assistance with any other matter, please complete our contact form or call us on 0131 225 1200.
Murray Beith Murray was established in 1849, as advisors for generations of clients, committed to our values of integrity, expertise and trust. This aim and these values continue to this day as does our commitment to be here when you need us
