Powers of Attorney & Guardianship

1. Powers of Attorney & Guardianship Donald Winskill, Associate Elspeth Paget, Partner 19th November 2011

2. Powers of Attorney: Questions • 'Do you need them?' • 'When should you grant a POA?' • 'What do they cost to set up / operate?' • 'Who should your Attorneys be?' • 'What if you don’t bother?'

3. Alternatives • Joint bank account? • DWP Appointeeship • Application to Public Guardian for 'Access to Funds' • Intervention / Guardianship Orders

4. Adults with Incapacity (Scotland) Act 2000 • Introduced new system for: • safeguarding welfare / managing finances and property • of adults (aged 16 or over) • who lack the capacity to make decision / take action for themselves • due to mental disorder or inability to communicate by any means

5. What does 'incapacity' mean? • s 1(6): 'Incapable' means incapable of: • acting; or • making, communicating, understanding or retaining the memory of, decisions by reason of mental disorder or of inability to communicate because of physical disability

6. How does the 2000 Act work? • Enables other people to make decisions / take action on your behalf, subject to safeguards • April '01 … April '02 … October '07 … • The Office of the Public Guardian

7. General Principles of 2000 Act (1 of 5) • Principle 1: Benefit • The intervention must be necessary and must benefit you

8. General Principles of 2000 Act (2 of 5) • Principle 2: Minimum Intervention • The intervention must be the minimum necessary to achieve the purpose (ie the least restrictive option in relation to your freedom)

9. General Principles of 2000 Act (3 of 5) • Principle 3: Your Wishes • Take into account your present and past wishes and feelings (and try every possible means of communicating with you to find out what these are)

10. General Principles of 2000 Act (4 of 5) • Principle 4: Consult With 'Relevant Others' • Take account of views of nearest relative, primary carer, and anyone with an interest in – or powers relating to – your finances or welfare, so far as is reasonable and practicable

11. General Principles of 2000 Act (5 of 5) • Principle 5: Promote Skills • Encourage you to exercise whatever skills you have concerning your property, finances or personal welfare, and to develop new such skills

12. Prepare for the Future / DIY • What can you or your relative do if you have 'capacity'? • Joint bank account? • Powers of Attorney – just another 'insurance policy'? • Hope it never happens?

13. Powers of Attorney • Format and implementation procedures changed on 2nd April 2001. Two new categories of Attorney recognized: • Continuing Attorneys – power and control over property and financial affairs • Welfare Attorneys – power over care arrangements, health issues, etc

14. Creating a Power of Attorney • When? • Pick 'n' Mix • Must be signed by you and witnessed • Must be certified • Cost

15. Who should your Attorney(s) be? • Continuing Attorneys can be individuals, companies or firms • Welfare Attorneys must be individuals (eg friends, relatives, members of Family Support Groups) • Substitute Attorneys • Joint Attorneys

16. Limitations on yourAttorneys' Powers • Your Attorneys may not: • make a Will (but could upset your plans!) • carry out your functions as a Trustee / Executor • place you in a hospital for the treatment of mental disorder against your will • appoint their own replacements

17. ImplementingPowers of Attorney • No authority prior to registration • When to register? Risks v hassle • Registration fee • Certificate of Registration • Copies to sender, grantor, notice of WPOA given to local authority or Mental Welfare Commission (MWC)

18. Exercising Powers of Attorney • Continuing v Welfare • Can a Scottish POA be used in England? • Role should not be purely reactive • Not obliged to invest for maximum profit • Don’t abuse position • Act reasonably, in good faith and follow General Principles

19. What if you become incapax? • Attorney should meet you, your nearest relative & your primary carer • Review your affairs and needs • Who else has power over your finances? Any changes actually needed? • Consult with Welfare / Continuing Attorney(s) • Intervene if needed, keep records

20. Your Attorneys' Ongoing Functions • Regular meetings • Remain contactable • Seek advice where required from Public Guardian / local authority / MWC • Be able to justify actions • Assist with any investigations by supervisory bodies

21. Court Proceedings following Complaint • Sheriff may: • impose supervision of your Continuing Attorney by the Public Guardian • order your Continuing Attorney to submit accounts to the Public Guardian • revoke your Attorney's powers

22. Ending your Power of Attorney (1 of 2) • Your Attorney may resign • You can (regain capacity and) revoke • If you and your Attorney are married, on decree of separation, divorce or nullity • Appointment of a Financial or Welfare Guardian with relevant powers

23. Ending your Power of Attorney (2 of 2) • On bankruptcy (of you or your Attorney) • On your death (or recovery?) • Death or incapacity of Attorney • Triggering event occurs / duration expires / purpose is achieved

24. Pre-April 2001 Powers of Attorney • Powers of Attorney signed before 2nd April 2001 = Continuing and/or Welfare Powers of Attorney • No requirement to register with the Public Guardian

25. Non-Continuing Powers of Attorney • Outwith scope of the 2000 Act, so no registration necessary, BUT … • powers would cease upon your incapacity

26. Registered Powers of Attorney

27. Powers of Attorney: Answers • 'Do you need them?’Maybe not. • 'When should you grant a POA?'Before it’s needed. • 'What do they cost to set up / operate?'Less than guardianship. • 'Who should your Attorneys be?'You choose. • 'What if you don’t bother?'Depends what’s round the corner …

28. Intervention Orders • Entirely new procedure for 'one-off' decisions or actions • Duration: until action completed • Examples: signing tenancy agreement; raising a court action; dealing with an inheritance; setting up a trust; consenting to medical treatment

29. Guardianship Orders • Replacement / extension of the role of curator bonis • Duration: at Sheriff’s discretion • Examples: selling property and investing / managing proceeds; making decisions about care package; deciding where the person should live

30. Procedure (1 of 2) • Intervention Order v Guardianship Order • Who can apply? Who can be appointed? • Court application plus three (or five) reports • Lodge application in time (30-day rule relaxed since April 2008)

31. Procedure (2 of 2) • Give notice of proceedings • Sheriff Court Hearing ('closed court') • 'Find caution' (discretion since April 2008) • Timescale and costs • Apply three months before 16th birthday; order effective immediately on attaining age of 16

32. Duties of Guardians • Prepare Inventory / Management Plan • Seek consent to a) principle and b) price of house sale or purchase • Keep records, submit accounts • Keep General Principles in mind at all times!

33. Intervention / Guardianship Orders

34. Further Information • Codes of Practice by Scottish Governmentwww.scotland.gov.uk/Topics/Justice/law/awi • The Office of the Public Guardianwww.publicguardian-scotland.gov.uk • Mental Welfare Commissionwww.mwcscot.org.uk

35. Powers of Attorney & Guardianship Donald Winskill, Associate Elspeth Paget, Partner 19th November 2011