One of the great successes of The Adults with Incapacity (Scotland) Act 2000 has been increased awareness of powers of attorney and the valuable role they play in ensuring that the affairs of an adult, who is no longer capable, continue to be looked after.
Having someone of their choosing already in place takes a huge burden off everyone’s shoulders especially if swift action is required. Traditionally, powers of attorney were the preserve of the wealthy who would often appoint their solicitor as their “man of business” to fulfil that role. Prior to 1991 the power of attorney would cease if the granter became incapable. It was therefore, strictly, not possible for the attorney to continue to act after that.
Two things have changed in recent years. The first is that powers of attorney now do not lapse when the granter becomes incapable. This means that the powers conferred can continue to be used even if the granter himself can’t supervise what is happening. That, of course, is the whole point of continuing powers of attorney.
The second is that more often than not it will be family members who are appointed. This, again, makes sense in that they are more likely to know the circumstances and what is the right thing to do. And, of course, it keeps costs down. The combination, however, of these two changes opens up a new problem. We are seeing an increase in cases where the attorney has abused the powers they have been granted. Although the Office of the Public Guardian has power to intervene if things are brought to its attention, there is no automatic supervision of the actions of attorneys.
Here is an example of what can go wrong:
The granter is incapable and in a care home, paying handsomely for their care. Their money is dropping rapidly. The attorney can see their hoped-for inheritance disappear if they don’t do something to prevent it from being “frittered away” on care home fees. There can be a misplaced sense of moral entitlement which can cloud their judgement.
In a recent English case a son felt justified in charging his mother £400 a day for visiting her and dealing with her business. His appointment was revoked by the court.
Attorneys always need to remember that any action they take using their powers has to comply with the general principles set out in the Act. Any action taken must have the incapable adult firmly at the centre of the decision-making and be for their benefit. An attorney must not allow their personal interests or prejudices to conflict with their duties towards the granter.
They may try to justify inappropriate behaviour on the basis that all they are doing is what their parent would have wanted, which is also one of the general principles. However, that may not be enough to prevent some serious consequences if the spotlight is shone on the actions they have taken. The vast majority of cases work well, but when appointing an attorney you have to be aware that there is a risk that the people who you have put your trust in, might not always do as they should.