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Frequently Asked Questions

What is the Public Guardian?

The Office of the Public Guardian registers continuing and welfare powers of attorney, authorisations to access funds, guardianship orders and intervention orders pronounced in terms of the Act. The Public Guardian supervises guardians and people granted an intervention order. It also investigates complaints about the exercise of functions relating to the property or financial affairs of an adult, or any circumstances in which the property or financial affairs of an adult appear to be at risk.

Whom should I go to about problems with a continuing attorney, or a guardian, or an intervener with financial powers?

The Office of the Public Guardian will investigate any legitimate complaint (from anyone) about how a continuing attorney or a guardian or an intervener with financial powers is carrying out his or her duties. If you are worried, you can contact the Office of the Public Guardian 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 a 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 to place him or her under supervision, but there are costs involved in this option.

Whom should I go to about problems with a welfare attorney, or a guardian, or an intervener with welfare powers?

Anyone who has a concern about how a welfare attorney, guardian or intervener is using, or not using, his or her welfare powers can complain to the local authority social work department, which should 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 a sheriff, who can order the local authority to supervise an attorney, or take away some or all of the attorney's powers. The sheriff has the power to make a guardian report to the local authority, remove a guardian, or to replace him or her with a joint or substitute guardian.

I'm worried about the financial abuse of an adult with incapacity. Whom should I go to?

The Office of the Public Guardian can investigate any legitimate complaint about the financial affairs of an adult with incapacity.

Is there a cheap and straightforward way to access my relative or friend's bank account on his or her behalf?

Yes. If the person with dementia has bank or building society accounts in his or her sole name, you can apply to the Office of the Public Guardian to access the funds. (This is also known as 'authority to intromit with funds' or becoming the person's 'withdrawer'.) This part of the Adults with Incapacity Act was designed to be used by a carer, relative or friend, but others with a genuine interest can apply (but not local authority staff such as social workers).

I have a joint account with someone who now has incapacity. Can I go on operating the account?

Yes, provided only one signature is needed on cheques (an 'either or survivor clause'). If the person becomes incapacitated you can continue to operate the account as before (unless you opted out of the scheme when the account was set up, or you are prevented by a court order from operating the account.)

What happens to powers of attorney made before the Adults with Incapacity Act?

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.

The Public Guardian's website also has a list of frequently asked questions.


This information is based in part on Dementia: Money & Legal Matters - A Guide , ©Alzheimer Scotland - Action on Dementia, 2002