A Power of Attorney is a document regularly used by an adult to appoint an individual or individuals, known as attorneys, to act on their behalf in relation to financial and welfare decisions when they do not have capacity. It is an important step to take given the alternative is costly litigation to secure a guardianship order if a Power of Attorney is not in place at the time an individual loses their capacity.

An emerging risk, as evidenced in the media and client cases, is the worrying trend of economic abuse where the victim’s financial resources are controlled and manipulated and/or their assets are exploited or misused by another person. With 8.7 million adults confirming an experience of economic abuse in the UK, it can occur in any relationship across the socio-economic divide and can impact spouses, partners, family members, or care givers.

Often the victim’s access to money, bank accounts or credit cards is deliberately restricted, making them dependent on the abuser. The abuser may misuse the victim’s funds for their own benefit, such as stealing money, forging signatures, or coercing the victim to give control over their assets. Sometimes a victim could even be deceived into making financial decisions not in their best interests, such as signing contracts or loans without their knowledge or consent.

Simran Panesar-Saggu is Legal Director, Turcan Connell

In this respect you might question the sense in granting authority to someone to act on your behalf.

Positively, in Scotland, there is a legal framework in place to safeguard individuals and set principles must be applied by attorneys when acting in their role. The Office of the Public Guardian, a government body which regulates this area of the law also has investigative powers.

It is important that individuals carefully consider who they wish to appoint as their attorney. This should be someone they trust, and who knows them well. I would also encourage clients to appoint more than one attorney with a mechanism for dispute resolution in the event the attorneys cannot agree. Although a joint appointment is not often encouraged as this leads to inflexibility, for example, two signatories on a bank account, there may be certain circumstances where a joint appointment provides accountability and protection from an attorney going “rogue”.

When taking instructions, a practitioner should meet the adult on their own, face to face and, if possible, over two meetings. This builds an understanding of the client’s family dynamics and allows the practitioner to rule out any issues of coercive control or undue influence. Instructions should come from the adult, rather than another family member, and where this is not the case, the practitioner should carefully assess the situation to ensure that the adult is not being influenced to make a decision. Practitioners should also be aware of different cultural factors when advising clients - for example, where an adult cannot speak English and requires a translator.

A Power of Attorney is a hugely useful document which can be tailored to allow you to plan how your health, wellbeing and financial affairs will be looked after, crucial today in a society where economic abuse is rising. It gives you peace of mind and helps to position someone you trust to make decisions on your behalf and in your legitimate interests.

Simran Panesar-Saggu is Legal Director, Turcan Connell

Power of Attorney is a useful document, but beware potential pitfalls - Simran Panesar-Saggu