What can be done if an attorney abuses their position?

One of the key elements when you grant a Power of Attorney is choosing someone you trust to become your attorney. Of course, you want to make sure the person you appoint is similarly minded as you. This means they are more likely to make the kinds of decisions about your welfare and finances that you would make.

However, on rare occasions the unexpected can happen. On those occasions, if an attorney goes off the rails, we must consider what can be done when an attorney abuses their position.

The Adults with Incapacity (Scotland) Act 2000

This Act introduced two new types of Power of Attorney. A Welfare Power of Attorney empowers an attorney to deal with all aspects of your welfare. A Continuing Power of Attorney empowers an attorney to deal with all aspects of your finances. Frequently, these powers are combined into a Combined Welfare and Continuing Power of Attorney.

Prior to the passing of this Act, the authority under a Power of Attorney lapsed when the granter became incapacitated. Traditional Powers of Attorney still lapse should the granter become incapacitated. However, Welfare and Continuing Powers of Attorney survive the adult’s incapacity and the attorney can continue to act.

What kinds of things can go wrong?

The types of things that can go wrong depend on the type of Power of Attorney the granter has granted.
For instance, the attorney acting under a Welfare Power of Attorney may fail to make proper arrangements for or ignore essential elements of the care of the granter of the Power of Attorney. This can lead to hardship, upset, and damage to the granter’s wellbeing.

In the case of a Continuing Power of Attorney, the attorney might, for instance, fail to pay the granter’s bills or, in a worst-case scenario, make off with the granter’s money!

What can be done if an attorney abuses their position?

If an attorney has abused their position, the Adults with Incapacity (Scotland) Act 2000 contains provisions that address the attorney’s “bad behaviour”.

In the case of a Welfare Power of Attorney, if the attorney has failed to act in the best interests of the granter, a complaint can be made to the social work department of the local authority, asking that they intervene to resolve this position. They can intervene and safeguard the welfare of the granter.

In the case of misuse or abuse of the granter’s finances, a complaint can be made to the Office of the Public Guardian Scotland. This can result in an investigation of the financial abuse and can ultimately lead to an intervention to remove the attorney and recovery of any misappropriated funds.

What are your options when appointing an attorney?

When you are considering drawing up a Power of Attorney, give serious consideration to the skills and capabilities of your prospective attorney. Does he or she have the financial skills that would allow then to properly manage your finances? In the case of a Welfare Power of Attorney, does he or she have the understanding of your welfare needs and the empathy to take action to ensure the correct level of care?

Clearly, appointing someone you trust is paramount. But why not consider appointing more than one attorney? This would introduce a system of checks and balances not available when a sole attorney is appointed. You may consider it appropriate that one attorney deals with your welfare issues whilst the other deals with financial issues. Alternatively, you might give them equal powers on the basis that, through discussion and consensus, they will make the right decisions about your care and finances.

Whatever you do, when you are considering appointing an attorney, make sure you discuss this with them in advance of their appointment. You can tell them what you would like to happen in certain circumstances. You can discuss different options and listen to their opinion and likely solutions to find out if these would match your expectations.

The final step in considering a Power of Attorney is to speak with your solicitor. Our solicitors have years of experience in advising clients and dealing with Powers of Attorney. We will guide you through the entire process, discuss your options and even what can be done if an attorney abuses their position.
Please contact us if you would like to have a discussion about preparing a Power of Attorney.