Using a Welfare Power of Attorney
The person may have signed a power of attorney earlier in the illness naming someone to look after his or her welfare affairs. This will probably be a power signed after 1 April 2001; before then, powers of attorney did not generally include welfare powers. Being someone's welfare attorney means that you take decisions, but it does not need to be you who cares for the person.
Unlike continuing powers of attorney, a welfare power of attorney can only be used once the granter has become incapable.
Registering a welfare power of attorney
In order to operate a welfare power of attorney, the document 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 welfare matters, you must provide evidence of this (for example medical certificates). Welfare powers of attorney can only be registered and used when the person is no longer capable of taking his or her own decisions.
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, a doctor or social worker.
The person who gave you the power of attorney is known as the granter. When the power is registered, 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. The Scottish Executive has produced a code of practice for attorneys which you should use to guide you.
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. You should also keep contact details for the granter, the person's nearest relative, primary carer, continuing (financial) 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 welfare attorney, and notes of any discussions of the person's expressed wishes and where relevant papers are kept.
Information and consultation
It is very important that you have as much information as possible about the person with dementia's current 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 the person with dementia and to his or her nearest relative and primary carer and anyone else involved, such as the person's continuing attorney and other relatives and friends involved in his or her care. You will need to consult them about the decisions you take, and it is important that everyone understands your rôle as welfare attorney and how you will carry it out and consult (for example, regular meetings of those involved might be very useful).
You may need to review the current situation and whether anything needs to be improved. For example, is the person happy, does he or she need more help or services, is his or her living situation suitable and does he or she have access to activities he or she enjoys? The code of practice will give you more guidance on what to consider.
If you need advice on using your welfare powers, your local authority social work department or the Mental Welfare Commission can advise you.
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 (you must give 28 days' notice to the Public Guardian, unless there is a joint or substitute attorney willing to take over)
- 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
Anyone who has a concern about how a welfare attorney is using, or not using, his or her powers can complain to the local authority social work department, which will investigate. If the social work department does not investigate, or the investigation is not satisfactory, the Mental Welfare Commission can investigate.
If necessary the case can be referred to the sheriff, who may order the local authority to supervise the attorney, or take away some or all of the attorney's powers. When they supervise an attorney, the local authority will visit the person with dementia and the attorney regularly, usually at least monthly. They will also inspect the attorney's records.
This information is adapted from Dementia: Money & Legal Matters - A Guide , ©Alzheimer Scotland - Action on Dementia, 2002