Using a Continuing Power of Attorney
The person may have signed a continuing power of attorney earlier in the illness, naming someone to look after his or her financial and property affairs. If it is a continuing power of attorney signed after 2 April 2001, it must be registered with the Public Guardian and can then be used. If the power of attorney was signed before 2 April 2001 but after 1 January 1991 it does not need to be registered and will remain valid when the granter becomes mentally incapacitated (unless it was deliberately set up not to do so). Powers signed before January 1991 were not continuing. The position with these is not clear, but in practice they may continue in use unless challenged. Check with a solicitor if there are any difficulties.
If you are someone's attorney, you will need a copy of the document issued by the Public Guardian, who will also provide a certificate of registration. To use the power of attorney, you should show these to whoever you are dealing with; for example, the bank manager.
Registering a Continuing Power of Attorney (made after April 2001)
In order to operate a continuing power of attorney which was made after 2 April 2001, it must be registered with the Public Guardian. There is a registration fee. Please use this link to access the Public Guardian's table of fees. The registration form and guidance are available by post or online. If the power of attorney specifies that a particular event must happen before it can be registered, such as mental incapacity relating to property and financial affairs, you must provide evidence of this (for example medical certificates).
The person who gave you the power of attorney is known as the granter. The Public Guardian will check that you are willing to act as attorney, and will notify the granter and anyone else specified. All being well, the Public Guardian will then authenticate a copy of the document. You will need this in order to use the power of attorney. You can get extra copies for a fee of £10 plus £1 per page of the document from the Public Guardian. The Public Guardian will also provide you with information and advice on how to operate the power of attorney and your rôle as attorney.
A Position of Trust
Being attorney for someone is a position of trust. You have a legal duty to act with due skill and care, and to act reasonably and in good faith. If you do, you are not personally liable for any financial loss to the granter. But if you abuse your position, you are legally liable to make good any losses.
Your duties as attorney include:
- following the Act's principles and the code of practice for continuing & welfare attorneys consulting with the granter and others on actions you propose to take
- keeping records
- notifying the Public Guardian of any change in details, such as a change of address for you or the granter
- keeping the granter's affairs confidential
- keeping the granter's affairs separate from your own.
Records
The records you keep should include a record of every action you take, including receipts, instructions to banks, correspondence and accounts. You should also keep contact details for the granter, the person's nearest relative, primary carer, welfare attorney or guardian if there is one and any significant others (because you have a duty to consult them) and of any joint or substitute attorney, notes of any discussions of the person's expressed wishes, and an up-to-date list of his or her assets and where relevant papers are kept.
Powers of Attorney made before April 2001
The principles of the new Act also apply to operating a power of attorney made before the Act came into force on 2 April 2001. However, these older powers of attorney do not have to be registered with the Public Guardian, so there are fewer safeguards. It is good practice to keep records, but this is not a legal duty. However, an attorney who does not carry out his or her duties properly can still be placed under the supervision of the Public Guardian.
If you are worried about losing the document, a solicitor may be able to certify a photocopy as a true copy that you can use. If the power of attorney was registered with the Registers of Scotland ( not the same as registering new powers of attorney with the Public Guardian), you can ask the solicitor to obtain an extract copy, or write to the Keeper, Registers of Scotland, Meadowbank House, 153 London Road, Edinburgh EH8 7AU, 0131 659 6111 (from £11).
Information and Consultation
It is very important that you have as much information as possible about the person with dementia's current financial situation and his or her wishes, likes and dislikes, past and present. When the granter becomes incapacitated and you take on your duties as attorney, talk to him or her and to his or her nearest relative and primary carer and anyone else involved, such as the person's welfare attorney and other relatives and friends involved in his or her care. You will need to consult them about the decisions you take. It is important that everyone understands your rôle as continuing attorney and how you will carry it out and consult (for example, regular meetings of those involved might be very useful).
The Scottish Executive has produced a code of practice for attorneys which you should use to guide you. If you need advice on using your financial powers, the Public Guardian can advise you.
If you have not previously been closely involved in the person's financial affairs, you should review the current situation and whether anything needs to be improved. For example, does he or she own the house or rent it, what savings and investments are there and are they earning good interest rates, what income and outgoings does he or she have and is he or she receiving all benefit entitlements? The code of practice will give you more guidance on what to consider.
When a Power of Attorney ends
An attorney can refuse to start operating his or her powers, so it important that the granter gets the attorney's agreement when the document is drawn up. Once it is being used, a power of attorney will end if:
- the granter cancels it whilst still capable, recovers or dies
- the attorney resigns (if the power of attorney was made after 2 April 2001, you must give 28 days' notice to the Public Guardian, unless there is a joint or substitute attorney willing to take over)
- the attorney becomes bankrupt
- the attorney dies
- the attorney is married to the granter and they separate or divorce (unless the power of attorney says otherwise)
- the court appoints a guardian with relevant powers, to take over the granter's affairs.
Safeguards
The Public Guardian has a duty to investigate any legitimate complaint (from anyone) about how an attorney is carrying out his or her duties. If you are worried, you can call the Public Guardian's office to discuss the issue. For a complaint to be investigated you will need to submit it in writing. If necessary the case can be referred to the sheriff, who can make the attorney submit accounts for audit. The sheriff may order that the attorney is supervised by the Public Guardian, or take away some or all of the attorney's powers.
Anyone with an interest has the right to apply directly to the Sheriff to direct the attorney to do something or not do something, or to remove the attorney or place him or her under supervision, but there are costs involved in this option.
This information is adapted from Dementia: Money & Legal Matters - A Guide , ©Alzheimer Scotland - Action on Dementia, 2002