Residential property
04 Jun 2021 News

The role and obligations of an attorney

Acting as an Attorney on behalf of someone else, whether it be for financial or welfare matters, is a big commitment and it is important that attorneys are aware of the responsibility that is being placed upon them. We recommend you read the Code of Practice for Continuing and Welfare Attorneys published by the Office of the Public Guardian.

  1. General principles

The law sets out five over-arching principles which should be applied by an attorney when making any decision on behalf of another person.

These principles are that any action or decision by an attorney must:

  • benefit the person;
  • be the minimum necessary to achieve the desired purpose;
  • take account the past or present wishes and feelings of the person;
  • take account of the views of others with an interest in the person; and
  • encourage the person to use existing skills and develop new skills.

All of these principles are of equal importance and must be applied to every decision.  We will use Margaret as an example.  If you are the attorney for Margaret and are called upon to take a decision we recommend you ask yourself:-

  1. Is there any way Margaret can do this herself?
  2. If not, then ask yourself “How can I help Margaret do this herself?
  3. If that is not possible, then think “What would Margaret’s wishes be, will this benefit her and what is the minimum I need to do to achieve Margaret’s wishes?
  4. When you have reached a conclusion, discuss your proposals with Margaret’s close family and carers. Think about what they have to say as they may give you a helpful insight into her wishes.

Only when you have gone through this process, make a decision.  One of your duties as an Attorney is to keep records therefore, we also recommend you keep a note of your decision and the process you have followed in coming to that decision. 

  1. Tips for acting as an attorney

To help with being a good Attorney, we have put together our top 5 tips:

  1. Speak to the person who has asked you to be an attorney - as soon as you are asked to be an attorney, ensure you talk to them about their wishes. Whilst they have capacity it is vital to discuss their thoughts regarding care and medical treatment and to obtain an idea of their property and financial affairs.  It is very important to understand who is important to that person as this will give you a clearer idea of the people you ought to consult.  Often this can be a difficult conversation, but it is crucial in helping you decide what to do if you are called upon to act.
  2. Understand what you can (and cannot) do – read the Power of Attorney document. Each Power of Attorney document will differ, and you may only act within the powers detailed in the document.  Some of the powers, such as those allowing you to make decisions about care and welfare, may only be used when the granter does not have capacity.  The Power of Attorney document will tell you who is to decide if the granter does not have capacity.  Therefore, read the document carefully and seek the advice of a solicitor if you have any questions. 
  3. Be organised – it is a legal obligation for all Attorneys to keep records. We recommend you keep a folder or a notebook (or both) to record all financial transactions and decisions which you have made whether financial or welfare.  It is important to narrate why any decisions were made.  For example, the granter has previously expressed their view while they had capacity, or following discussion with the family and others, it was agreed this was the decision the granter would make.
  4. Know when to seek help – read the Code of Conduct or contact The Office of the Public Guardian who provide helpful guidance for Attorneys. Legal advice can also be taken if necessary, for example where you are unsure if they have the power to take a decision.
  5. Gifts - One of the most frequent areas of dispute which we have come across is the question of an Attorney either making gifts to him or herself or undertaking expenditure for the granter which either intentionally or unintentionally benefits the Attorney. 

Where you are an Attorney and propose to undertake any of these actions, we recommend you firstly understand whether you can undertake such a transaction and secondly, if you can then keep very detailed records. 

Our Private Client teams in Edinburgh, Glasgow and Perth are experts in planning for elderly care and understand that it can be a challenging and emotional process.  We can provide thoughtful advice and help you navigate the challenges and explore all options, to ensure peace of mind for you and your loved ones.

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