At VMH, we are regularly asked by our clients to arrange for Powers of Attorney (PoA’s) to be put in place. As long as someone has mental capacity, they can give someone else the power to make decisions on their behalf by granting a PoA in their favour.
There are 2 elements to PoA’s in Scotland:-
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Continuing powers, also known as the administrative or financial powers.
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Welfare powers, typically including the power to decide upon care and accommodation for the granter of the PoA should they lose mental capacity and cannot live independently.
Over the course of 2024, our Private Client team has identified an increased number of clients who have experienced difficulties in using existing PoA’s. Courts are now interpreting the terms of the European Convention of Human Rights (ECHR) into decisions about whether an Attorney has the power to move someone into residential care.
Under the terms of Article 5(1) of the ECHR,
“Everyone has the right to liberty…” and “No one shall be deprived of his liberty…”
other than in some specific cases, such as
“the lawful detention… of persons of unsound mind…”.
Where the courts consider that the granter of a PoA has not considered their rights under the ECHR before signing their PoA, Attorneys must apply to the Sheriff Court to obtain a Guardianship Order. The Order gives the Attorney the extra authority they need to be able to place their loved ones in care if the situation arises.
With careful planning, PoA’s can be drafted to ensure this doesn’t have to happen. Or, if you would want your Attorney to have to apply to the Sheriff Court to review all of the circumstances of any decision to move you into care in the future, the PoA can be drafted on this basis instead.