Chapter 6 - Stopping being an attorney
Not getting started
6.1 There may be a long time lapse between being appointed as attorney and being required to use your powers. If your personal circumstances or those of the granter change drastically during that time, you may feel that you are no longer suitable to act as attorney.
6.2 It is good practice to remind yourself occasionally that you have agreed to be given continuing or welfare powers of attorney and to notify the granter while he or she is still capable if you think your ability to take on the role may be in doubt. This would allow the granter to revoke your powers and appoint someone else while still capable; or alternatively to appoint a joint attorney to share the powers with you or a substitute attorney in the event that you can start, but cannot continue.
6.3 If you can foresee that circumstances will make it impossible for you to act, you must tell the person straight away. It is possible that even if the granter has started to lose capacity in relation to some matters, he or she still has sufficient understanding to be capable of appointing another attorney.
6.4 The Act requires the Public Guardian to register continuing and welfare powers of attorney. At that stage the Public Guardian must be satisfied that the person appointed to act is prepared to act. You will be required to indicate your willingness to act on the Public Guardian's registration form. So if you do not wish to act, you may refuse to complete that portion of the form. But if at all possible you should notify the person first and as a matter of good practice you should endeavour to ensure that appropriate alternative arrangements are put in place.
6.5 After the continuing or welfare power of attorney has been registered, you may resign if you wish or need to do so, but must follow the requirements below.
6.6 You must write to the granter, the Public Guardian, any guardian, or where there is no guardian, the adult's primary carer, and the local authority, where they are supervising the welfare attorney, giving notice that you intend to resign. Your resignation will not take effect for 28 days after the Public Guardian receives the notification. This is designed to ensure that there are no gaps in the arrangements for taking care of the interests of the adult. Where the resignation is of a welfare attorney the Public Guardian will notify the local authority and the Mental Welfare Commission of your resignation.
6.7 If you are a joint attorney, the notice of your resignation should be accompanied by evidence that the remaining joint attorney is willing to continue to act. If a substitute attorney has been appointed by the granter, evidence that that person is willing to act should accompany the notice.
6.8 If you can, you should include a signed letter from the substitute attorney when you send in your notice of resignation. This will mean that your resignation will be effective from date of receipt. You will not have to wait 28 days. If that is not possible, but you are in contact with the substitute attorney you should ask the substitute to write to the people concerned as listed above. If no indication is received the Public Guardian will need to ascertain if the substitute attorney is willing to act.
Other circumstances that bring powers to an end
6.9 If the granter and the continuing or welfare attorney are married to each other the power of attorney shall, unless the document conferring it provides otherwise, come to an end upon the granting of:
- a decree of separation to either party;
- a decree of divorce to either party;
- declarator of nullity of the marriage.
6.10 The authority of a continuing or welfare attorney in relation to any matter comes to an end on the appointment of a guardian with powers relating to that matter.
6.11 The power of attorney will also end if:
- in the case of a continuing attorney, the attorney or the granter becomes bankrupt. But a welfare power of attorney does not come to an end in the event of the bankruptcy of the granter or the welfare attorney;
- the adult recovers capacity to the point that he or she can take steps to revoke the power of attorney and does so;
- the granter dies;
- the attorney dies;
- the continuing or welfare power of attorney is revoked by order of the sheriff.
6.12 If the power of attorney is terminated you should make sure that you keep the records of what you did while acting as attorney and be prepared to make these records available to a guardian or other attorney, if one has been appointed in your place or in the event of the adult's death, to his or her executor.
6.13 If you have been unaware that your powers have terminated you will not be liable for any acts undertaken in good faith.