By Moyra Diaz Limaco, Trainee Solicitor

The Office of the Public Guardian has published an updated Attorney Declaration Form on their website.

What is a Power of Attorney?

A Power of Attorney allows the granter to decide who can act on their behalf in the event of any future incapacity. It is possible to appoint someone to deal with both your financial affairs and health and welfare matters.

This form has been updated to include additional information for prospective Attorneys, so that they are fully informed when providing their consent to act.

While the previous forms simply asked Attorneys to complete their details, to confirm they were willing to act and that they were not currently declared bankrupt. The updated form includes a section on the Duties and Responsibilities of an Attorney, as well as more complete Declaration.

Duties and Responsibilities

This section asks prospective Attorneys to ensure that they have read and understood what is required of them. If they are unsure whether they can act or if they will be able to comply with the requirements in the future, they are asked to report this to the sender of the form.

The requirements are as follows:-

  • To respect the general principles of the Adults with Incapacity (Scotland) Act 2010.
  • To consult and respect the Code of Practice for Continuing and Welfare Attorneys.
  • To ensure that every measure is taken to support the granter of the Power of Attorney to make their own decision on any matter, or otherwise allow them to exercise their legal capacity.
  • To ensure that any decision made on behalf of the granter respects their rights, will and preferences and takes into account any known wishes and feelings, both past and present.
  • To communicate with relevant parties and take into account their views.
  • To act within the scope of the powers granted to them.

The prospective Attorneys are also reminded that they are in a position of trust and must not take advantage of the powers which are granted to them.

Declaration

This section asks prospective Attorneys to confirm that they are over the age of 16 and that they are willing to freely accept the appointment.

The updated form also asks that they confirm that they are not currently declared bankrupt but clarifies that this condition is applicable to Continuing (financial) Attorneys only and that this does not affect the appointment of Welfare Attorneys.