Choosing Attorneys

Choosing attorneys is the most important decision you have to make and you should choose carefully.  

All attorneys must be over the age of 16 and a welfare attorney must be an individual.  Your attorneys should be the people you trust most and who will make the decisions about your finances and your welfare you would make.

Skills for Continuing and Welfare Attorneys

Continuing Attorneys

Your continuing (financial) attorneys cannot be currently bankrupt. You can appoint an attorney who has been bankrupt previously so long as they have been discharged from the bankruptcy.

Your continuing attorneys may be called upon to pay your bills, manage your bank accounts and investments and deal with any other property you own. They must only use your finances to benefit you and in accordance with your wishes.

Therefore, you must choose continuing attorneys who are confident in managing finances. It should be the people you trust will be as careful with your money as you have been.

Do not choose a continuing attorney who likes to take risks or has had difficulty managing their own money. This is likely to place undue pressure on your attorney and may lead to unfortunate financial consequences for you.

Welfare Attorneys

Your welfare attorney may be called upon to make important decisions about your health and welfare. If necessary, they will have to decide whether you go into residential care or what medical treatment you receive or do not receive.

Therefore, you must choose your welfare attorneys very carefully. It should be the people you know will make the decisions you would make. It should not be the person who thinks they know best and ignores your wishes.

Your welfare attorneys should also have the confidence to speak to care providers and stand up to others to defend your wishes.

To give your welfare attorneys confidence, you should speak to them openly about your wishes. By doing this you will also help your attorneys if they ever have to make difficult decisions on your behalf

Frequently Asked Questions

Who should I choose to be my Attorney ?

It is very important you choose your attorneys carefully.  One of the most common issues the Courts and the Office of the Public Guardian have to deal with are complaints about attorneys.

We recommend you choose the people you trust most to make the decisions you would make.  Do not choose an attorney just because he or she is the oldest or may be offended.  If they ever have to act as your attorney, the law says they have to make the decisions you would make.   

How many attorneys can I have ?

We recommend you have at least one continuing and one welfare attorney with a substitute for each.  If you prepare your Power of Attorney with POA Scotland you can have up to three continuing and three welfare attorneys at no extra cost.

If you have more than three attorneys it is more likely they will disagree. We have designed our questionnaire to allow you to choose who will make the final decision if they disagree.  

Can I have different attorneys for finances and welfare ?

Yes, of course.   

This can be a very good idea if you have attorneys with different skills.  One might be good with money and another is good at looking after your care.

It can also be helpful to your attorneys to share responsibility and focus on what they are good at.  You have the choice of who is best to help you.

What is a substitute attorney ?

A substitute attorney will take the place of your main attorney if he or she is unable to act for you for any reason.  For example if they die or become incapable.

It is a very good idea to have at least one substitute attorney.  This is particularly the case if you have appointed only one main attorney.

Will my attorneys always have to make decisions together ?

It is your choice. 

If you trust all of your attorneys completely, we recommend you allow each of you attorneys to make decisions on their own or together.  This is because one may be on holiday or unavailable when an important decsion has to be made.

However, if you would like your attorneys always to make decisions together, choose that option in our questionnaire.  If you choose to only allow your attorneys to make decisions together, no one attorney can make a decision alone.

What happens if my attorneys disagree ?

This is one of the reasons it is very important that you choose your attorneys carefully.  We  recommend you speak to your attorneys when they are together, or even send a letter to all of your attorneys saying how you would like them to make decisions.

Even if you do all of this, your attorneys may still disagree.  So, we give you the option to choose which of your attorneys should make the final decision if they disagree.

This option is built into our questionnaire because we think it is very important you choose which attorney will make the decision you would make.

What powers should I give my attorneys ?

At POA Scotland we have over 15 years experience of making Powers of Attorney.  We therefore include all of the powers your attorneys will need to look after both your finances and welfare. So there is no need to worry.

We recommend you read Power of Attorney in full before you sign it.  If you have any questions, please contact us.

When you read your Power of Attorney you may think it includes some wording you don’t need. We recommend you keep the wording because all of our circumstances change

What should I tell my attorneys ?

You must tell your attorneys that you are making a Power of Attorney and that you would like them to  be your attorney. This is because every attorney must sign a form to agree to be your attorney.

It is also part of the law that your attorney must take into account your past and present wishes. Therefore, it is very important you tell your attorneys what your wishes are, for example what care and medical treatment you agree or disagree with.

This can avoid disagreements in the future.

I have been appointed as an attorney, what are my duties ?

The Scottish Government have issued a Code of Practice for Continuing and Welfare attorneys.  We recommend you read this in full.

All attorneys must comply with the Adults With Incapacity (Scotland) Act 2000.  This means you must allow the granter to make as many decisions as possible and take into account their wishes.  You can only make decisions within the powers contained in the Power of Attorney and must communicate with the nearest relatives and carers of the granter.  You must also keep records of your actions as an attorney and keep the granter’s affairs confidential.

Finally, as an attorney you are in a position of trust.  It is the law that you cannot take any payment or otherwise benefit from acting as an attorney.  To do so would be a conflict of interest

What records do attorneys have to keep ?

The law requires that all attorneys keep records.  What these will be depends on the affairs of the granter.  You should refer to the Code of Practice for Continuing and Welfare attorneys.

We recommend you keep at least  a record of any reviews you undertake of the granter’s affairs, important decisions you make and a detailed list of the grater’s assets, income and expenditure.

The detail will very much depend upon the granter and the actions you take.  However, it might be a good idea to keep a record book and a cash book or spreadsheet to keep track of expenditure.

Your actions as an attorney can be challenged at any time.  Therefore, it is very important that you keep sufficient records to support all of your actions as an attorney.

Who makes sure my attorneys do the right thing ?

Your Power of Attorney is a very powerful document.  Therefore, you must choose carefully who you appoint to be your attorney. 

Above all your attorney should be someone you trust entirely and will make the decisions you would make.  Don’t choose an attorney just because s/he is the oldest child or you are afraid that they will feel rejected.  It is very responsible position and your attorney must have the skills to fulfill that role. 

However, even if you choose your attorney carefully they may need help or guidance in the future.   They should read the Code of Practice for Continuing and Welfare Attorneys issued by the Scottish Government.

The body responsible for supervising financial (continuing) attorneys is The Office of the Public Guardian.  They have power to investigate attorneys, have an attorney removed and report a matter to the police. 

The local authority is responsible for supervising welfare attorneys and can instigate an investigation or report a matter to the Mental Welfare Commission for Scotland.

When should my Power of Attorney come into effect ?

Your welfare Power of Attorney only comes into effect when (or if) you become incapable of making decisions.  You choose who is to decide if you are incapable.  At POA Scotland we let you choose whether you would like a doctor to decide or you trust you attorneys to decide.

If you trust your attorneys completely, it is a good idea to allow your attorneys to decide.  This gives maximum flexibility and allows decisions to be made quickly.  If you choose a doctor your attorneys will need to get a letter from a doctor saying you are incapable before they can act.

Your Continuing (financial) Power of Attorney can come into effect at any time you choose.  This allows you to allow your attorneys to pay your bills and look after your finances, even if you are capable but need help such as speaking to organisations on the telephone.

If you trust your attorneys, it is a good idea to allow your Continuing Power of Attorney to come in to effect at any time.  This is because it will allow your attorneys to pay you bills and look after your finances if you are in hospital but you are still mentally capable.