Chapter 3 - Exercising powers of attorney (continuing and welfare)
What responsibilities do attorneys have?
3.1 Once you start to act under the powers granted, you must meet certain standards:
- follow the Act's principles (see chapter 1 paragraph 1.12);
- consider whether the person has the capacity to make the decision in hand for him/herself – and if not to consider whether the granter is likely to regain capacity to make the decision in the future;
- only make those decisions that the power of attorney gives you authority to make;
- apply certain standards of care and skill (duty of care) when making decisions;
- carry out the granter's instructions;
- not take advantage of your position and not benefit yourself (fiduciary duty);
- keep records;
- respect confidentiality;
- comply with any directions imposed by the sheriff court.
Duty of care
An attorney must act with due skill and care in exercising the powers he/she has been given in relation to the adult. A professional person acting as a proxy must demonstrate the skill and care that would be expected of a reasonably competent member of that profession.
Fiduciary duty (position of trust)
An attorney has what is known as a 'fiduciary duty' to the granter. This means that you are in a position of trust with respect to the matters covered by your powers. You should not take advantage of your position – nor put yourself in a position where your personal interests conflict with your duties. Nor must you allow other influences to affect the way in which you act as an attorney. Decisions must always benefit the granter. Attorneys must not profit or get any personal benefit from their position, apart from receiving gifts where the power of attorney allows it.
Duty to keep records
Continuing attorneys should keep accounts and keep the person's money and property separate from their own. Welfare attorneys should keep a record of matters relating to the personal welfare of the adult – for example, his or her care plan from the social work department if there is one; a note of special events or significant incidents, including illness and accidents.
Duty of confidentiality
There are three separate issues that arise under the heading of confidentiality. These are:
- your right to have access to confidential information about the adult;
- the use and proper disclosure of confidential information about the adult;
- your fiduciary duty (the trust placed in you) to maintain the adult's confidentiality.
The issue of access to confidential information concerning the adult should be covered in the original grant of power of attorney. Similarly your right to disclose information about the granter should have been covered in the power of attorney document.
Where someone holding confidential information refuses to disclose it to you and your powers do not explicitly authorise you to demand it, then you should consider whether the party in question owes to the adult other duties in addition to the duty of confidentiality which may override the duty of confidentiality, and if so to explain this.
- Example: an investment adviser may owe the adult a duty of confidentiality not to disclose the size and location of his or her investments, but may also owe a duty of giving the adult the best possible advice on the investment of his or her estate. The latter duty would imply that disclosure of the size and location of the investments to you as continuing attorney would be justified.
If you cannot obtain the information you need because of inadequacy of your powers as attorney, you might refer the matter to the Public Guardian, take legal advice, or seek an intervention order in relation to the information in question.
3.2 If you act reasonably and in good faith, and in accordance with the principles, you will not be liable for any breach of any duty of care or fiduciary duty.
Action on becoming aware of the adult's incapacity
Informing the adult and others
3.3 When you become aware of the granter's loss of capacity in relation to matters in hand, it would be good practice to meet with the granter and others with an interest in his or her welfare and finances, e.g. other family members. This should be done as soon as reasonably practicable after learning of the person's incapacity. The purpose of the meeting is to explain your position as welfare and or continuing attorney and what your powers will cover. You may need to refresh your memory as to what your powers as attorney cover by consulting the document granting your powers. Needless to say, if there are both continuing and welfare attorneys you should co-operate with each other so that the same meeting can cover both property, financial affairs and welfare matters.
3.4 If it is not possible to meet with others together then you should try to meet with each person face to face. If this is not possible, for example because the nearest relative lives far away or the primary carer (if this is someone other than you) is not able or willing to meet, you should write to each of them. Your letter should inform them how you propose to go about your functions.
3.5 If you have welfare powers, you should explain that you will undertake a review of the arrangements in place for caring for the granter's personal welfare and that you will report the outcome of the review to them and discuss what, if any, action needs to be taken.
3.6 You should explain that you will need their co-operation in carrying out the review, for example in obtaining information about the adult's health, how he/she spends time, how he/she copes with personal care and so on.
3.7 If you have continuing powers you should explain that you will undertake a review of all financial matters over which you have powers and may need their co-operation. That if you make any changes to the person's current arrangements you will keep them informed.
What to do if the adult has communication difficulties
3.8 If the adult has communication difficulties, the guidance in Annex 1 may help.
3.9 If your attempts to communicate with the adult are not proving successful, you should still take into account the information you have gathered about the adult's wishes and feelings in the past; and any information you can obtain from those involved with the adult on a day to day basis. You should keep a record of the attempts to communicate, even if they are unsuccessful.
3.10 In cases where the adult has seriously impaired capacity and communication, for example, a person with profound and complex learning disabilities, it would be acceptable practice to meet separately with relevant others.
Holding regular reviews
3.11 You should review the person's welfare and/or financial needs at appropriate intervals. A review should involve the person (as far as possible) and others concerned with his/her care and or financial management. The frequency of review will depend on any change in circumstances and extent of your day to day contact with these individuals. However it would normally be good practice to hold a review at least once every six months. For further details see chapter 4 (financial) and chapter 5 (welfare).
If you think action is needed – apply the principles
3.12 The outcome of a review may be that an action/intervention may be needed. In reaching a decision as to whether and what action to take you must apply the principles. The principles are set out below with examples relating to situations which may arise for both welfare and continuing attorneys.
- First you must consider whether the intervention would benefit the person, and that benefit cannot be achieved in any other way.
Example: if a substantial amount of the adult's surplus funds is in a current account, it will benefit the adult in terms of maximising income to place the funds in an interest bearing account and it will not be possible to maximise income without making some change.
Example: if the person is inactive and lethargic, try to find out how he or she is feeling, whether he/she is unwell or unhappy; whether the person is undernourished and why that might be, e.g. help needed with shopping for food or assistance with preparing and/or consuming meals. Find out what activities would be of interest or if the person would like more company at home or outings to see friends and relatives or places of interest. If you think the person may be depressed then contact the person's GP.
- Secondly you should consider whether the proposed action is the least restrictive option in relation to the freedom of the person, but consistent with what needs to be achieved to benefit the person.
Example: continuing with the example of the account, you will wish to consider how much freedom the person should retain to divert funds to alternative use. If the purpose of the intervention is to maximise income, but the adult may also need access to capital, you should not be tying up the account where there will be no early access or a substantial penalty for such access.
Example: to move the person into a care home might be considered a restrictive option (unless, for example, the person is isolated and living in a top floor tenement flat). Before deciding that the person can no longer live at home, you must take steps to find out whether additional support from community care services would enable the person to remain at home for longer. If you reach the view that the person must move into a care home, try to find a home which will meet the need to maximise opportunities for the person to keep up interests and contacts, enable exercise as appropriate to the person's capabilities; provide appropriate stimulation and maintain as much independence as feasible for the person.
- It is important that you take into account the past wishes and feelings of the person. You should be aware of his/her past wishes from earlier discussions and should have notes of these on file.
Example: there is no point in investing in stocks and shares if the person has already made it clear that he or she prefers safe investments with a lower return to risky investments. You should also respect the person's wishes and feelings regarding ethical investments.
Example: If the person has made it clear in the past that he or she dislikes clubs and day centres then there is no point in making such arrangements. Conversely, if the person has said in the past that he/she would rather live in a care home than be a burden to relatives, that view should be taken into account.
- In relation to every particular decision and or action that you are considering you will also need to take account of the present wishes and feelings of the person so far as they can be ascertained. If the person has communication difficulties you made need assistance from a specialist social worker or speech and language therapist to do this.
- You also need to take account of the views of the nearest relative, and relevant others. They may also help identify issues you may have overlooked in your review, for example, the person's fondness for animals or favourite places to visit. You might wish to write or phone in advance of any further meeting to report the outcome of your review.
Check your powers
3.13 If, following a review, you decide that a major decision needs to be taken you should check whether your powers would cover that particular intervention. You will only be able to act as attorney where you have been granted the powers to do so.
3.14 It is not possible to add powers once the granter has lost capacity. However it may be possible for the desired action to be achieved through the social work department. For example, if the person requires community care services or a move to a care home and you don't have the power to consent, the local authority may be able to use its powers under the Social Work (Scotland) Act 1968. Or, depending on circumstances, it may be appropriate for you to apply for a welfare guardianship or intervention order. For further information see the booklet 'Guardianship and Intervention Orders – making an application'. Information about accessing Scottish Government publications can be found at Annex 2.
3.15 You should make a note of: the findings of your review; what decisions or actions you have considered; actions and decisions taken; and add this to your file.
Make sure you can be contacted
3.16 You should ensure that you can be easily contacted by the person, nearest relative and relevant others. You should give them full contact details, including any other names by which you may be known, your preferred contact address, telephone number, fax and e-mail, your emergency contact details and the name and contact details of any other person who can get a message to you quickly.
3.17 You should give advance notice to all of the above if you are likely to be unavailable for any period of time.
Responsibility to act
3.18 Although it is helpful to be familiar with the granter's affairs, it can be important to step back and review the whole situation, in case there are elements which you have not previously thought about or may not have been fully aware.
3.19 Your role should not be purely reactive. You should not just wait until someone else comes to you with a problem about the person's health, welfare, property or financial affairs. You should take stock of these affairs for yourself and take action where necessary. The extent to which you can be proactive will depend on the powers you have been granted and you should check that your powers cover any action that you are considering.
- Example: if you have continuing powers and the adult is accumulating significant income, you should see whether it can be applied for the adult's benefit, and otherwise ensure that it is invested where it will obtain a reasonable rate of return. If the adult is or may be entitled to benefits, you should take steps to claim these on his or her behalf.
- Example: if the adult becomes unable to manage his or her personal care without help you should approach the social work department for a needs assessment and support services. If the adult is unwell, you should consult a medical practitioner.
What if you encounter resistance to the exercise of your powers?
3.20 You may find that when you first start to exercise your powers you encounter resistance.
3.21 It will be essential to be able to produce your certificate of registration to fundholders and others with whom you may do business on behalf of the person.
3.22 Others may question whether the granter is in fact incapable of taking the actions or decisions that you propose to take. You must be sure that you are acting within your powers. You should refer to the clause in the power of attorney on how incapacity is to be decided and check that you have complied with this. It may also be advisable to seek advice from the OPG (on the exercise of continuing powers) or the MWC (on the exercise of welfare powers). If the person him/herself or someone else with an interest in his/her welfare contends you are in breach of your powers then he/she can make a formal complaint.
3.23 Ultimately it is for the courts to decide if someone is incapable and others could apply to the sheriff to have the granter interviewed or assessed. You can direct anyone who doubts your position to his/her right to seek directions from the sheriff under section 3(3) of the Act, or you can seek such directions yourself.