Unfortunately sometimes relationships in families can become more difficult as relatives age and sometimes you may not always agree with decisions that are made. We look at what you can do if you disagree with a decision as to who has been granted power of attorney.

What is power of attorney?

A continuing (financial) and/or welfare power of attorney is a legal document which allows someone else to make decisions for the granter, when they become unable to make their own decisions. The document gives the attorney, subject to the exact terms, the ability to do everything the granter can do themselves, so it is vital that they appoint individuals that they trust.

What is involved in granting a power of attorney?

A granter can only create a power of attorney where they are deemed to have capacity to make this decision and can appoint whomever they wish as their attorney (with the exception of someone who has previously been declared as bankrupt for financial and property affairs). Accordingly, once an attorney has been appointed it is considered that the granter has made it clear that they trust that person to handle their affairs and act in their best interests.

Can an attorney's appointment be challenged?

Put simply, you cannot challenge the appointment of a particular person for no other reason than that you disagree that they should be an attorney.

Often people disagree with a person being appointed as power of attorney due to more specific reasons. For example, they disagree about the way in which an attorney is using their power to manage an adult's finances or property. Or alternatively, an adult's property or financial affairs appear to be at risk perhaps because of the involvement of a third party who has no authority to manage the adult's finances.

In those circumstances it is possible to request that the Office of the Public Guardian (OPG) undertake an investigation. The OPG is an independent public body which has a supervisory and regulatory role in relation to matters connected with the Adults with Incapacity (Scotland) Act 2000, which includes power of attorneys.

Once a referral has been made to the OPG they will begin their investigation by gathering all the relevant information, for example speaking to the granters bank, carers or doctor. Having reviewed their findings, if they consider that there is a risk to the granter there are a couple of courses of action open to them to take, including:

  • Making an application to the sheriff court, asking the attorney to submit accounts for audit by the OPG;
  • Providing advice and guidance so that safeguards can be put in place;
  • Have any or all of the attorney's powers or their appointment revoked.

If you are not satisfied with the outcome of the OPG's investigation, you can refer the matter to the sheriff court .

What if I have concerns about an attorney's use of their welfare powers?

It is important to note that any concerns regarding the actions of an attorney in respect of the exercise of their welfare powers, should be addressed to the local authority where the granter lives or the Mental Welfare Commission for Scotland.

What is the key message here?

When someone appoints an attorney to manage their affairs on their behalf, they are making a clear statement that they trust the attorney / attorneys to act in their best interests. Indeed, this is a point that any solicitor preparing a power of attorney will be at pains to underline to any granter.

There are safeguards in place to guard against any abuse of power by attorneys, and those safeguards can have significant consequences for attorneys whose conduct is found not to be in the granter's interests.


Kevin Winters