In this blog post, I will explain how you can challenge a person who has power of attorney over someone else’s affairs. It is a sad topic – which thankfully most people will not require information know about. But if you think an attorney is behaving in a way which has harmed, is harming, or risks harming someone vulnerable who you love, you may find the following information useful. If this unfortunate topic does affect you then our power of attorney specialists are on hand to give advice.
What you need to know about power of attorney:
Power of attorney is a legal document (certificate) which appoints a person to act on someone else’s behalf, perhaps when an elderly person becomes too frail to handle their financial and legal affairs, or when someone is unable to cope due to long-term health problems.
Whichever way it comes about, the attorney will be granted certain powers. These might include looking after their bank accounts and investments, or making decisions about where they live and how they are cared for. The specific powers are stated in the legal document and these will vary depending on individual circumstances.
A person who wishes to grant someone power of attorney over their affairs must get a certificate from a solicitor, advocate or doctor, which states that they want these powers to be transferred to someone else. The certificate confirms that the witness is satisfied that it has been understood and no undue pressure has been applied to force them to sign it.
This witnessing requirement is one of the safeguards used to try to protect the person concerned. As they are likely to be vulnerable, additional duties (mostly about care and trust) apply to their attorney.
The duties of care and trust:
The attorney must act in a trustworthy manner and apply a reasonable amount of care when taking any action on behalf of the person concerned.
Under the duty of care, an attorney is required to:
- Act with ‘due skill and care’ when exercising their powers
- This is measured by what a reasonably competent attorney would do
Due to the position of trust, an attorney has a ‘fiduciary duty’ which requires them to:
- Ensure all decisions benefit the person who granted them the power of attorney
- Not take advantage of their powers for their own benefit
- Not profit from their position
- Not allow a conflict of interest to arise
- Not allow other influences to affect their behaviour when acting as an attorney
Attorneys must also keep accurate and up-to-date records (which are kept separate from their own) and maintain the person’s confidentiality when disclosing information about them to others.
What might the breaching of these duties look like?
Various actions, a combination of issues, or a lack of action might cause you to feel suspicious. But some potential examples are:
- The person concerned is not getting their benefits
- They are not being provided with clothing or hygiene products
- The attorney is living beyond their means
- The attorney is living in a property which is owned by the person they are under a duty of care to look after
- The attorney is refusing the engage with social workers or care home staff
- The care home where the person lives is complaining of unpaid debts
What to do if you suspect an attorney is breaching their duties:
If you think someone is in immediate danger, call 999.
If you suspect a criminal offence has been committed, contact your local police station, or call 101 for the police non-emergency number.
If there is no immediate danger and no criminal offence has been committed, but you suspect that an attorney may be breaching their duties, contact the Office of the Public Guardian instead:
Telephone: 0115 934 2777 (Monday to Friday, 9am to 5pm)
Office of the Public Guardian
PO Box 16185
What is the Office of the Public Guardian and what does it do?
The Public Guardian is an independent office, which has statutory powers to investigate and supervise people with power of attorney under the Adults with Incapacity (Scotland) Act 2000. Their aim is to ensure an ‘incapable adult’ and their property are adequately safeguarded, meaning not abused or misused.
The Public Guardian investigates historical issues as well as current and future risks. Investigations involve gathering relevant information, which usually means interviewing people and reviewing documents like bank statements.
Once the investigation has been concluded and the Public Guardian is satisfied that the attorney did not appear to be acting in the person’s best interests, they can do one of three things:
- decide to start monitoring the attorney
- ask the attorney to the resign
- report the matter to the Sheriff and ask for the attorney’s removal
What should I do before I contact the Public Guardian?
You should try to gather relevant information before contacting the Office, as you will need to provide evidence to support your concerns. This evidence might be:
- bank statements
- statements from care home staff
- social worker reports
- letters from the Department of Work and Pensions
The above examples could be relevant, but you should gather any evidence which you think shows that an attorney is breaching their duties as described above.
What happens after an attorney is removed by the Public Guardian, or resigns?
The person for whom the attorney acted will still need protection.
The local authority may take over, to act as a ‘corporate appointee’. This ensures that their care home is paid on the basis that the local authority is repaid after the person is no longer alive and their house is sold.
Alternative arrangements might be put in place depending on the situation, but you can rest assured that the Public Guardian will make sure they are safeguarded against abuse and that their money is being used appropriately.