Acting as an attorney: What you need to know

Becoming an attorney for a loved one can be both stressful and emotional. What powers you have will depend on the type Power of Attorney  you have been granted and the specific circumstances. In this guide, we cover:

• The different Power of Attorney and what they mean
• How to register your powers 
• When you can start acting as attorney 
• Obligations of an attorney
• Change in circumstances while acting as attorney

If you have been asked to be an attorney, it is vital that you know the responsibilities that come with it. At Macnairs + Wilson, we can help ensure that you understand all the legal requirements and duties granted to you. For bespoke advice, get in touch with our private client team.

The different types Power of Attorney and what they mean

In Scotland, you may have been asked to be someone’s attorney for either a Continuing Power of Attorney, a Welfare Power of Attorney or both. 

Continuing Power of Attorney

A Continuing Power of Attorney allows someone over the age of 16 to appoint a trusted person to make decisions on their behalf in relation to money or property. As a Continuing Attorney, you could be responsible for looking after someone’s bank accounts and investments, as well as buying or selling property on their behalf. These powers can have immediate effect or be activated only if and when the person granting the power (“the Granter”) loses capacity.

Welfare Power of Attorney

A Welfare Power of Attorney allows the attorney to make important decisions about the Granter’s medical treatment and will only come into effect if the Granter loses capacity. Day-to-day care arrangements, diet and medical treatments are some of the common duties carried out by a Welfare Attorney.

Combined Continuing and Welfare Power of Attorney

A combined Power of Attorney enables the person appointed as the attorney to make decisions based on both the financial and health-related care of the Will-holder.

How to register your powers

Once a Power of Attorney has been made, the document must be registered with the Office for the Public Guardian (Scotland) (“OPG”) in order to have legal effect. The OPG will then send you a Certificate of Registration to confirm that the Power of attorney has been registered under the Adults with Incapacity (Scotland) Act 2000. 

When can I start acting as an attorney?

A Welfare Power of Attorney will only come into effect if the Granter loses capacity, while a Continuing Power of Attorney will identify when the attorney’s powers are to be exercised.

There is no legal requirement to inform the OPG when you start acting as an attorney. 

What obligations does an attorney have?

All attorneys are required to act in accordance with five principles contained in the Act when making decisions on behalf of a Granter. This includes taking into account the Granter’s present or past wishes and the views of others involved in the person’s welfare. It may be that you are one of multiple attorneys and in such circumstances, all attorneys must act in the best interests of the person concerned.

An attorney must not act outside the scope of the powers granted and they must keep a record of how these powers are to be used. They must also keep their personal financial transactions separate from those related to their attorney duties.

What happens if circumstances change?

Acting as an attorney is an important role and powers must be executed in accordance with their legal obligations. The OPG must be notified when certain circumstances arise including: 

If you or the Granter moves house

It is vital that the OPG have up to date contact details of both the attorney and Granter to ensure that all legal paperwork and correspondence is sent to the correct address. As such, any change in living arrangements must be reported to the OPG right away. 

You are Continuing attorney and have been declared bankrupt

As a Continuing attorney, you have a legal duty to inform the OPG if you have been declared bankrupt. This is because you cannot perform your duties of making financial decisions on someone’s behalf when you are bankrupt. While your powers as Continuing attorney will be removed, you can still act as Welfare attorney if appointed. 

You are your partner’s attorney but are getting divorced 

It is very common for your spouse or civil partner to appoint you as their attorney, however, all rights bestowed to you as attorney are automatically revoked should you separate or divorce. If your relationship has broken down with your partner, you must contact the OPG as soon as possible.

You want to resign from being attorney 

If you are an attorney but would like your powers to be revoked, you must notify the OPG in order to resign from your duties. If you are one of multiple attorneys then your powers will be taken over by the other active attorneys. However, if you are the sole attorney and decide that you want to resign, this will bring the Power of Attorney to an end and the Granter will have to create a new one. In cases where the person requiring care has lost capacity, the attorney may have to apply to the court for a guardianship order.

Contact our Power of Attorney Solicitors in Glasgow and Paisley, Scotland

If you’d like to discuss your circumstances and the possibility of appointing a Power of Attorney, call Macnairs + Wilson on 0141 887 5181 for our Paisley branch, 0141 551 8185  for our Glasgow branch or write to us via our online contact form.