Imagine if you couldn’t make decisions yourself.
Who would act on your behalf? Who’d pay bills, manage your welfare, and make key decisions?
That’s the role of your attorney.
The breadth of the control an attorney can have over your affairs couldn’t have been starker in a case our firm pursued recently where the court found attorneys had financially exploited three elderly brothers.
The court found the McCulloch brothers had appointed two attorneys, in dubious circumstances, to manage their personal welfare and financial affairs as their health declined.
The attorneys weren’t related to the three men and, in 2014, the brothers transferred the Highland farm where they had been brought up, to the two attorneys and their wives for “love, favour and affection”. There was no payment.
The court found the attorneys then sold the property and did not pass, or even offer to pass, the proceeds of sale to the brothers.
The sheriff also found the attorneys had subjected the brothers (two of whom have sadly died prior to the action concluding) to “undue influence” and ordered them to pay £390,000 to the brothers’ estates.
A Highland Adult Protection Partnership statement said the brothers had lived together at the family farm, which all three jointly owned, for most of their lives. The court found it might have been possible for them to live out their lives there, had it not been for the attorneys’ intervention and deliberate actions.
Adult protection measures were initiated in 2017 and again in 2018 in response to concerns from relatives, friends, and neighbours.
In 2018, the Highland Health and Social Care Partnership took legal action to ensure the brothers’ safety and wellbeing and arranged for the appointment of a professional financial guardian — Ledingham Chalmers partner Fiona Thomson — to protect all the brothers’ interests and safeguard any remaining financial resources.
It’s imperative the legal profession pursues cases like this: representing vulnerable people who have been subjected to undue influence — by those in a position of trust — at a time when they are particularly susceptible.
The brothers were three vulnerable adults. The attorneys were in a position of trust.
In particular, one of the attorneys was a reverend with the Church of Scotland, the other a neighbour and friend.
A solicitor was involved in the transfer of the farm from the brothers to the attorneys and the decision of the court was that this solicitor did not provide independent legal advice to the brothers in relation to the transfer or its effect.
The attorneys’ actions did not benefit the brothers, instead depriving them of their family home, assets, and the freedom to choose where they lived.
On the other hand, the attorneys benefitted substantially by disregarding their duties and the conduct of conduct they were bound by in performing this role.
The Sheriff Appeal Court dismissed an appeal by one of their attorneys and the Court of Session in Edinburgh is currently considering whether to allow a further attempt to appeal this decision.
For background, here are some commonly asked questions about powers of attorney, and what to do if you're concerned about someone.
What is a power of attorney?
A power of attorney lets you plan what you want another person to do for you in the future if you’re no longer capable of making decisions about your own affairs.
It’s a written document including a certificate signed either by a solicitor who is registered to practise law in Scotland, a practising member of the Faculty of Advocates, or a registered UK medical doctor who holds a licence to practise.
What are my duties as an attorney?
The over-riding principle for any attorney is to act in the granter’s best interests in all decisions that they make.
The attorney should support the granter to make their own decisions and where that is not possible ensure any decisions made respects the granter’s rights, preferences and known wishes.
They should also keep appropriate records of all transactions relating to the granter’s financial assets.
How long does the process take to set up a power of attorney?
Granting a power of attorney is a simple process normally involving two meetings between the solicitor and the granter.
It is essential a solicitor sees the granter on their own and have the opportunity to ask any questions before the document is signed.
Once signed, the attorneys also sign a declaration form, confirming their willingness to undertake the appointment and referring them to the appropriate website information so they understand what the role of an attorney involves.
The signed documents are forwarded to the Office of the Public Guardian (OPG) for registration: a process currently taking some months; however, there is a mechanism to receive the registered documents quicker should they be required urgently.
How can I change a power of attorney?
Once the power of attorney is granted and registered, it can’t be changed. It can be discharged, and a new document granted so long as the granter still has capacity.
If the granter is no longer able to discharge or grant a new power of attorney, court action may be required to remove an attorney who is not acting appropriately. Attorneys can resign from acting or the document can come to an end through an attorney's death or divorce.
What should I do if I’m concerned about someone who could be in a similar situation?
You can speak to the person themselves or, alternatively, report your concerns to the OPG or the local authority so it can be investigated.
What are the duties of a financial guardian and why are they appointed?
Financial guardians are regulated by the OPG.
The duties are similar to those of an attorney to act in the best interests of the adult and to include them in any decision making in their affairs so far as their incapacity allows.
Guardians are far more regulated, producing annual accounts which the OPG audits and they have to ask permission from the OPG before making any substantial purchases on the adult’s behalf.
Financial guardians are appointed to those who are not able to deal with their own financial affairs. While many of us are fortunate enough to have someone who can help us with our day-to-day finances, many people do not. Relatives may live far away or have their own health or other issues which result in them being unable to deal with the day to day needs of someone else.
Others may have substantial funds which they would struggle to deal with properly.
The common denominator for all adults subject to a financial guardianship is that they are vulnerable, and someone needs to be in place to protect their assets for their benefit and from those that may seek to exploit them.
Does a power of attorney stop me dealing with my own affairs?
No, you can still deal with your own finances alongside your attorney, or just by yourself for as long as you want or are able to.
Powers of attorney are the documents you hope you will never need. If you do, having one in place will allow your attorneys, often your family, to have the legal authority to make decisions for you, at a time when you need them most.