Godparent, spouse, even best man or woman – the request to be any of these is a milestone in the journey of adulthood, family life and friendship.
What should perhaps join that list is the request to be an attorney. It’s a flattering sign of someone’s trust in you, but will also involve long-term responsibilities.
Clients often ask us to explain the duties and rights of being an attorney. Below are some of the questions we most frequently receive.
Who can be an attorney?
Attorneys in Scotland must be aged 16 or over. If they hold ‘continuing powers’, they must not be bankrupt. As long as they are not ruled out by those conditions and are willing to act, they can be a relative, friend, solicitor, spouse or partner.
How many types of attorneys are there?
There are two types of attorney in Scotland;
- a continuing attorney who has authority to manage the granter’s financial and/or property affairs; and
- a welfare attorney who has authority to manage matters relating to the granter’s personal welfare.
What are my duties as an attorney?
In a nutshell, you must always act in the best interests of the granter and keep records of how you exercise your powers. Continuing attorneys must also keep the granter’s financial affairs separate from their own.
You must also notify the Public Guardian about certain events, such as changes of address, the death of the granter, or bankruptcy.
More detail about attorneys’ duties is given in the Code of Practice for Continuing and Welfare Attorneys which can be found on the Public Guardian – Scotland website, or a solicitor can explain them.
Can I claim fees and expenses?
Attorneys are not generally paid to act, unless acting in a professional capacity but PoA documents can provide for attorneys to receive expenses. This should be discussed with the granter before the PoA is drawn up and registered.
What do I need to know before acting as an attorney?
Certain principles must be applied when exercising your powers as an attorney. These include:
- no action should be taken unless it will benefit the granter.
- any action taken should be the least restrictive option available.
Beyond such principles, your responsibilities and rights will depend on the PoA document. It is therefore essential to discuss and understand these before signing it.
