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Power of Attorney: Knowing and Working with the Limitations

In an age where local authorities are burdened with high volumes of requests in respect of Guardianship applications, there is an increasing need for the creation of valid Powers of Attorney (see our blog ‘CREATING POWER OF ATTORNEY: WHY YOU NEED A SOLICITOR’ here). A Power of Attorney document can confer wide ranging powers on the designated Welfare Attorney, dependent on the specific clauses contained in the Power of Attorney Document. However, it must be noted that the powers of Welfare Attorneys in certain circumstances are restricted in law, regardless of the terms of the Power of Attorney document.

First, section 16(5)(b) of the Adults With Incapacity (Scotland) Act 2000 provides that a Welfare Power of Attorney is not exercisable unless a) the Adult is incapable in relation to matters to which the Welfare Power of Attorney relates, or b) the Welfare Attorney reasonably believes this to be the case. In other words, to act, the Welfare Attorney must 1) have explicit authority in terms of the clauses contained in the Power of Attorney document, and 2) the Adult must have become incapable in relation to those decisions.

Crucially, the Welfare Attorney may not place the Adult in hospital for treatment of a mental disorder against his/her will. This also applies to those medical professionals issuing Certificates of Incapacity created in terms of s.47 of the Adults With Incapacity (Scotland) Act. Such authority must be sought under the Mental Health (Care and Treatment) (Scotland) Act 2003. Under s.36 of the Mental Health (Care and Treatment) (Scotland) Act a medical practitioner examining the Adult can issue an Emergency Detention Certificate and detain the Adult in hospital for up to 72 hours (starting from the granting of the certificate or the Adult’s first admission to hospital under authority of the certificate). The certificate includes the power to transfer the Adult to another hospital for treatment. Longer-term treatment may require an application to the Mental Health Tribunal for a Compulsory Treatment Order in terms of Part 7 of the Mental Health (Care and Treatment) (Scotland) Act.

A Compulsory Treatment Order application can only be made by a Mental Health Officer. It should be noted that there is no requirement under the Mental Health (Care and Treatment) (Act) for the MHO to notify the Welfare Guardian. Once the Power of Attorney document is registered, it would be prudent to send copies of the Certificate of Registration of Power of Attorney (issued by the Public Guardian) to the relevant local authority and to the Adult’s carers, where applicable. This would encourage the local authority, carers and other relevant professionals to dialogue with the Welfare Attorney and ease the process of attending to the Adult’s mental health needs.

If you would like to learn more about Power of Attorney, please visit the website of the Office of the Public Guardian Scotland:

If you would like to create a Power of Attorney, please feel free to contact McCarthy Law on 0141 337 6678, or via e-mail: