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Introduction
3.1 We endorse the principle that adults should be able to make plans for their future by granting a power of attorney to a person of their choice, which can be exercised in the event of their future incapacity. However, under current law, powers of attorney do not have to be registered and attorneys are not supervised or monitored by any public official. If an attorney abuses their powers there may be no one with sufficient interest to monitor and, if necessary, challenge the attorney's actions. It is also not clear whether, under Scottish law, attorneys can be appointed to exercise welfare, as opposed to financial, powers.
Policy objectives
3.2 At present, if a person wishes to appoint someone else to manage their property and financial affairs they may do this through the grant of a power of attorney. Such a power may come into force before incapacity and continue to be effective after incapacity. Under the new legislation, it will be possible to grant a financial power of attorney that continues on incapacity, if the granter specifically wants this. The attorney will be known as a continuing attorney.
3.3 We shall also create a new type of attorney with powers over a granter's welfare, which could be very broadly defined and could include all but the most sensitive healthcare matters. This type of arrangement will only come into force once the granter has lost capacity.
3.4 The same appointment procedure will apply to all continuing and welfare powers of attorney. A solicitor will be asked to certify that the person granting the power of attorney understands the full implications of what they are doing. The solicitor will also have to say that there is no reason to believe that the document was signed as a result of any action or inappropriate pressure, such as a threat, that would invalidate the grant. All continuing and welfare powers of attorney will have to be granted in writing and details will be held by the Public Guardian in a register open to public inspection.
3.5 Welfare attorneys will have to be individuals but it will continue to be possible to appoint a body such as a firm of solicitors as an attorney with financial powers. Continuing and welfare attorneys will have to keep records of how they exercise their powers and we will issue a Code of Practice setting out their duties and responsibilities.
3.6 In order to protect granters who subsequently lose capacity, the court will be able to order the Public Guardian or the local authority to supervise an attorney. It will also have powers to revoke an attorney's appointment, to order a welfare attorney to report on how any welfare powers have been exercised and to order a continuing attorney to produce accounts relating to the granter's estate. To offer further protection, the Public Guardian, the Mental Welfare Commission and the local authority will be able to investigate relevant attorneys' conduct if they have reason to do so.
Alternative approaches
3.7 The Scottish Law Commission considered whether it might be possible to regard attorneys as privately appointed guardians but concluded that this would make arrangements for attorneys unnecessarily complicated. We agree that it is important to preserve the voluntary and personal nature of the appointment of an attorney, so we too have retained the distinction between the two types of appointment.
Consultation
3.8 In the responses to the 1997 consultation paper there was a very strong consensus that attorneys should be obliged to keep records and also that public authorities should be able to investigate their activities even without a complaint or a court order being made. We have adopted both these requirements.
3.9 A person may wish to grant a temporary power of attorney, for example, to cover a period when they are abroad. Such powers are usually registered in the Books of Council and Session. The 1997 consultation paper asked whether temporary powers of attorney should require registration under the new arrangements. Most respondents considered, however, that only powers that continue after incapacity should have to be registered by the Public Guardian and we are following this approach.
3.10 The 1997 consultation paper also asked whether welfare powers should be defined in more detail in legislation. Some respondents thought this should be possible, although others considered it would be hard to achieve. An inclusive definition is difficult because many welfare decisions interact with financial decisions. For example, a decision about admission to residential care may also create costs for the adult concerned. On balance, we have decided against a detailed definition. We shall instead specify decisions that are beyond the powers of a welfare attorney, such as consenting to sensitive medical treatments or placing an adult in hospital for treatment of mental disorder.
3.11 Helpful comments were received in 1997 about the appointment ex officio of chief professional officers as welfare attorneys. There were concerns that a chief officer would be unlikely to know the granter nor be able to identify their personal wishes. We agree that the personal nature of a welfare attorney appointment makes a chief officer of a statutory body unsuitable for the post.
3.12 Some respondents in 1997 thought there should be express provision for the possibility of the granter of a power of attorney regaining capacity, after the attorney has started to act on their behalf. We take the view that if this happens, the granter will be able to monitor what the attorney does, revoke the appointment or apply to the court in relation to the attorney's actions. No express provision is therefore needed in the legislation.
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