IDG52265 - Disclosure when there is 'power of attorney': Scotland

Powers of Attorney which are to continue in the event of an adult's incapacity are governed by the Adults with Incapacity (Scotland) Act 2000. This Act provides for two types of power of attorney: a Continuing Power of Attorney (which covers property and financial matters) and a Welfare Power of Attorney (covering personal welfare issues), although they can be a combination of both. These documents are administered by the Office of the Public Guardian based in Falkirk (for further details on the Public Guardian (opens new window) please see their website.

Continuing Power of Attorney:

The person making the continuing power of attorney is known as a granter: the person receiving the authority is the attorney. A granter can appoint more than one attorney. There may be joint attorneys or even substitutes. The names of the persons appointed will be in the power of attorney document.

A continuing power of attorney must be registered with the Office of the Public Guardian to be valid and can take effect as soon as it is registered; unless the granter has stipulated in the document that it can only take effect after a certain event has occurred (for example, that a medical practitioner has confirmed in writing that the granter is incapable of conducting their own affairs). If the document has not been registered with the Office of the Public Guardian it has no effect and the granter's HMRC data should not be provided.

Granter's are encouraged to have powers of attorney drawn up by legal advisors as the law in Scotland requires that anything stipulated in the document should be strictly interpreted and cannot be in the form of implied powers. The document presented to you should therefore be clear in what the attorney has the power to do.

A continuing power of attorney will be signed by the granter: the signature is likely to be at the foot of the document but, as there is no strict format for continuing powers of attorney, it may be located elsewhere.

Once registered, the Office of the Public Guardian will send:

• a copy of the power of attorney to the sender (the person who sent the documentation to their office)
• an original registration document, in the form of a certificate which will be embossed with the Guardian’s official red seal.

These two documents will be bound together and heat sealed in a transparent folder. You should ask to see the bound copies as supplied by the Office of the Public Guardian and, having checked that the attorney has authority to access HMRC data, you should take a copy for your file, noting that you have seen the original.

You may then provide to the attorney any information that you could have supplied to the granter.

To see an example of a registered power of attorney click here

If you have any doubts about the authenticity of documents presented to you, you shouldnot release any HMRC data but should seek further advice from the Information StrategyTeam.

Amending a Continuing or Welfare Power of Attorney:

Pre-1 April 2008

: Powers cannot be added to a registered continuing or welfare power of attorney, but they can be partially revoked or deleted. To do this the granter must provide their instructions to the Office of the Public Guardian in writing. On receipt of this written notice, the Office of the Public Guardian will issue

a new certificate of authority that will be signed by the Public Guardian and contains a red embossed seal;

a copy of the registered Power of Attorney, and a copy of the granter’s written instructions. – both these documents will be embossed in the bottom right hand corner of each page.

You should therefore never see a power of attorney that has manuscript amendments. If you are presented with such a document, you should refuse to provide any HMRC data and should ask the presenting person to provide the correct authority.

Note: This practice may change after 1 April 2008 but at the time of publication, guidance is not yet available from the Office of the Public Guardian. However, the number of powers of attorney that are amended or partially revoked are small in comparison to the number registered, so you may never be presented with this type of documentation. In the event that you are and you need further advice, please contact the Information Strategy Team.

Revoking a Continuing or Welfare Power of Attorney:

Pre-1 April 2008:

Currently, if a granter wishes to completely revoke a registered continuing or welfare power of attorney they must write to the Office of the Public Guardian with their instructions. The Office of the Public Guardian will then revoke the power; however, the Guardian will not issue any documentation to this effect.

Post-1 April 2008: A granter wishing to completely revoke a registered continuing or welfare power of attorney will have to be interviewed by a:

• solicitor
• legal advocate
• doctor

to determine competency. Once the prescribed person is satisfied that the granter is able to make their own decisions, they will issue to the Office of the Public Guardian a Certificate of Capacity. The Guardian will then revoke the power of attorney; the Guardian will not issue any documentation to this effect.

If you suspect that a power of attorney presented to you has been revoked, do not provide any HMRC data to the presenting person without seeking further advice from the Information Strategy Team.

Intervention Order:

Under the Adults with Incapacity (Scotland) Act 2000 it is possible for someone to intervene in the affairs of an incapacitated person to either complete a single transaction or to have authority for a longer period where the benefit is clear and the outcome can be predicted. Examples might be to sell a property or to make a decision about health care. These are called intervention orders and are granted by the Sheriff.

Once the Sheriff has appointed an intervener, the court will send a copy of the court interlocutor to the Public Guardian who, in turn, will issue a certificate of appointment when the order is registered. The certificate of appointment contains the Public Guardian’s case reference, the name of the incapacitated adult, the name of the intervener and the date the powers were registered (to view an example click here). The certificate has a red seal which is embossed and a copy of the court interlocutor will either be laminated with the certificate or be in a binder with the certificate of appointment. The court interlocutor will outline the specific powers granted by the Sheriff to the intervener.

An intervention order will only exist for as long as the powers are required. For example, if an intervention order was granted to allow the intervener to sign a tenancy agreement on behalf of an adult, once the tenancy agreement is signed the intervention order would no longer be required and would be terminated.

Interveners of financial orders are supervised by the Office of the Public Guardian in Falkirk and they are required to provide a financial report every 3 months. When the powers are no longer required the public register will be updated to show that the powers have been terminated.

Anyone can access information held on the public register. However, the information provided will be the name of the adult, the name of the proxies, the date powers were registered, the status (terminated) and the type of powers registered for welfare or financial or both. The register does not provide specific information in relation to the financial or welfare powers granted.

Guardianship Order:

Where a person becomes incapacitated and there is no power of attorney in place, an application can be made to the Sheriff’s Court for a guardianship order. This application can be made by anyone, including family members or professionals such as a solicitor or accountant.

Guardianship orders will normally run for a standard period of 3 years but this period can be varied by the Sheriff; the order will be clear on the length of time it is to run.

A guardianship order can cover financial and/or welfare matters but where it is a financial order the Office of the Public Guardian will have a supervisory role over the appointed guardian. Guardianship orders are appropriate when powers are required on an ongoing basis to manage the incapacitated adult’s affairs or make decisions regarding their healthcare and welfare. As guardianship orders cover a period of time rather than a specific event, it is possible for a guardianship and intervention order to be running at the same time and for the appointed guardian and intervener to be different people. Guardians/interveners, if they are properly following the principles of the Act, should advise you if anyone else has the power to act on behalf of the incapacitated person; however, if you suspect that you do not have the full picture you should not release any HMRC data until you have taken further advice from the Information Strategy Team.

Once a guardianship order has been granted by the Sheriff’s Court, the guardian will be provided with the following:

• an embossed copy of the Sheriff's order (this may not contain the Sheriff's signature as these are emailed by the Court to the Office of the Public Guardian who issues the paperwork), and
• an original Certificate which will bear the Public Guardian's red embossed seal.

These two documents will be bound together and, often, laminated. You should inspect the bound documents, as issued by the Office of the Public Guardian and, when satisfied that the guardian has authority to access HMRC data, take a copy for your files noted to the effect that you have seen the originals. You may then provide to the guardian information that could have been provided to the incapacitated individual.

Example of the Public Guardians certificate.

If you have any doubts about the authenticity of documents presented to you, you shouldnot release any HMRC data but should seek further advice from the Information StrategyTeam.