Earlier this year a Scottish court ordered two former appointed attorneys to repay more than £1 million to the estates of three brothers from who they had taken the money whilst acting as the brothers’ respective powers of attorney. In the course of their appointment the attorneys had drained the brothers’ bank accounts and sold their farm without their knowledge.
Whilst one of the more serious reported cases, it is just one of many examples in recent times of where those appointed as attorneys have abused their position.
What is a power of attorney?
In Scotland an adult with capacity can put in place what is known as a power of attorney (PoA). This is a document which provides the attorney with the requisite legal authority to make financial and welfare decisions for the granter (“the Adult”) when and if they ever lose capacity, such as through dementia or other illness. The Adult can appoint more than one attorney to act on their behalf. Often those appointed to be an attorney are well known to the Adult and may be a family member or close friend.
Where there are no attorneys appointed and an Adult loses capacity then it would be necessary to make a formal application to court to appoint someone as the Adult’s guardian.
Although it’s a relatively short document, a PoA is not just a piece of paperwork. For the person appointed as an attorney it brings wide ranging responsibilities and obligations, including:
- The keeping of appropriate financial records
- Communicating with relevant parties to take decisions in the Adult’s best interests; and
- Taking decisions on behalf of the Adult which respect their rights, preferences and known wishes
Who supervises attorneys?
The Office of the Public Guardian (OPG) is the body responsible for supervising individuals who have been appointed to manage the financial and property affairs of adults with incapacity. They maintain a register of all PoAs granted in Scotland and have investigative powers where concerns are raised in respect of an Adult’s finances etc.
Other bodies who can assist and investigate include the Mental Welfare Commission, Local Authority Adult Protection Team and Police Scotland.
What if the OPG can’t help?
There are limits on the OPG’s powers, however. For example, it can’t investigate solely on the basis of a concern raised; evidence of the financial concerns must be provided to the OPG. Neither can it investigate where the concern is raised about one attorney where there are two or more attorneys in place.
In both of the above situations the person with the concern will often need to seek independent legal advice and assistance. In doing so it may be necessary to make court applications in order to recover bank and medical records so any allegations of financial mismanagement can be investigated and substantiated.
Where evidence of mismanagement exists then it might be necessary to submit an application to court in terms of Section 20 of the Adults with Incapacity (Scotland) Act 2000. The orders available under these applications are wide ranging and include orders for the attorney to provide an accounting for what they have done with the funds of the adults, through to the removal of the attorney from office.
If financial mismanagement by an attorney is not discovered until after the Adult has passed away, alternative remedies might need to be applied.
Signs?
Often family and friends close to the Adult are first to raise concerns about an attorney’s actions. Experience shows that unusual transfers of money or property, unexplained cash withdrawals, missing personal items and evidence of unpaid bills may all be signs for concern.
Though it can be difficult to raise a concern, protecting the Adult is paramount. Of course, there will be situations where those concerns are unfounded or where there has been no mismanagement but rather the attorney is simply struggling with the responsibility of the role. Neither of those situations will see the OPG look on the complainer unfavourably; the interests of the Adult will remain protected and, where necessary, guidance and help can be provided to the attorney.
For support and guidance on any aspects of Powers of Attorney, speak to a lawyer with expertise in this area.
