Managing affairs for someone else
This information applies to Scotland
What is meant by managing someone's affairs
Managing someone’s affairs means making decisions and doing things on their behalf. There are different ways you can manage someone’s affairs depending on what they want or need help with, and on what you are willing to do for them.
Someone can arrange for you to manage their affairs right away, or only if the time comes when they can no longer manage their own affairs. They can arrange for you to take on specific duties, or to make all decisions about their finances and welfare. If someone is already unable to manage their affairs, you can be granted legal authority to do things on their behalf. This information tells you what the options are.
Although a lot of material on managing someone’s affairs is publicly available, for example on the internet, it is important to be aware that much of this will not apply in Scotland. This is because the relevant law and procedures are often different in the rest of the UK.
There is a very useful leaflet produced by Age Scotland that explains all the major issues for someone worried about losing their capacity and for someone thinking about becoming an attorney. It is available from their website at www.age.scotland.
This information applies only to people over 16.
Why would you think about managing someone’s affairs
You may be close to someone who, for example:
- is finding it difficult to make decisions for themselves
- wants to put their affairs in order in case the time comes when they need help
- may already be unable to cope with managing their personal welfare and finances
- has asked you to administer their finances and property because they are planning to be abroad for a while
- is taking decisions that are not in their best interests, for example, overspending or making unnecessary purchases.
and want to find out what you can do to help them.
When would you manage someone’s affairs
You might want to manage someone else's affairs when they:
- are physically disabled or have a mental disorder, either temporarily or on a long-term basis
- are unable to communicate, perhaps because of a stroke or severe sensory impairment
- feel unable to make decisions for themselves, because of mental illness or for other reasons
- have a learning disability
- are out of the country for a while.
Ideally, arrangements will be put in place before they are needed, but this information also tells you what you can do if someone you know is already unable to manage their own affairs.
What does it mean if someone is incapable of managing their affairs
Someone over 16 who is incapable of managing their own affairs (‘an adult with incapacity’ or someone who ‘lacks legal capacity’) is unable to make or act on the decisions needed to look after to their own affairs.
The law defines an adult with incapacity as someone who is incapable of:
- making decisions; or
- acting on decisions; or
- communicating decisions; or
- understanding decisions (this includes being able to understand or remember information about the decision, including information about the foreseeable consequences of deciding one way or another, or of failing to make the decision altogether)
- 'mental disorder', or
- inability to communicate because of physical disability.
Most people associate incapacity with age related problems, like dementia. However, a young person can lose capacity because of an accident or medical condition, or may have learning disabilities that mean they need help with making decisions. Some people have fluctuating conditions and need help only some of the time. In some cases a person may only need help with their financial affairs but in others a greater degree of assistance or supervision may be required, for example, with issues of personal welfare. Capacity can be impaired gradually, or suddenly as a result of an accident or illness. A doctor will be able to say whether the person whose affairs you are thinking about managing is an adult with incapacity.
The Scottish Government has produced a leaflet called 'It’s Your Decision' for adults who may need help to make important decisions and need someone to manage their affairs for them. It is on their website at www.gov.scot.
What does managing someone’s affairs involve
While managing someone’s affairs you might:
- look after their bank accounts, savings, investments or other financial affairs
- buy and sell property on their behalf
- claim and spend welfare benefits on their behalf
- decide where they live
- make decisions about their day-to-day personal care or healthcare.
Depending on the arrangements in place you may have the authority to carry out some or all of these tasks.
Different ways of managing someone's affairs
The way you can get powers to manage someone’s affairs depends on whether they are capable of granting these powers themselves. They must understand the nature and extent of the powers they intend to grant. Someone who is already unable to make decisions about granting powers to manage their affairs is known as an adult with incapacity, see What does it mean if someone is incapable of managing their affairs.
You can look after someone's affairs:
- with a letter or a third party mandate to deal with a bank, building society or other financial account, see Bank and building society accounts
- as an appointee to deal with someone's welfare benefits or tax credits, see Welfare benefits and tax credits
- with a legal document called a power of attorney. There are different types of power of attorney, see Powers of attorney
- as a withdrawer authorised by the Public Guardian under the Access to Funds Scheme, see Bank and building society accounts
- as an intervener or guardian appointed by court order, see How can you help someone who has not made a power of attorney and is unable to manage their affairs
- as a trustee.
You may want to discuss these options with the person who would like you to manage their affairs, and your local CAB can provide more detailed advice - where to get advice.
Bank and building society accounts
You can open an ‘either to sign’ joint account with someone who would like you to be able to administer funds in that account. The terms of the account may state that it will terminate if one of you becomes incapable of operating the account. It is very important that you trust each other, as you will be able to access funds independently of one another. If the account goes into overdraft, you will be jointly responsible for the whole amount of the debt. This is called joint and several liability. It means that you can each be held responsible for the whole amount of the debt.
If someone needs you to operate a bank account for them on a temporary basis they can simply write to their bank. Many banks have their own form, called a form for third party mandate, which will need to be completed and returned to them. You should never disclose the PIN number for your account, nor should you be asked to disclose it even by your bank or building society or the person you have nominated to operate your account for you.
If someone needs you to operate more than one account for them, or for you to manage their financial affairs over a longer period, they might want to make a power of attorney. Their bank or building society may ask them to sign a basic power of attorney (often using their own standard document) authorising you to carry out specific tasks in relation to their account/s, see Power of attorney.
If someone is already incapable of managing their finances, you can apply to the Public Guardian to access specified funds on their behalf under the Access to Funds Scheme. It allows individuals or organisations to continue to pay bills and meet regular expenses for someone who can no longer do this. A person or organisation authorised under this scheme is called a withdrawer. You can find more information on the Access to Funds Scheme on the website of the Office of Public Guardian (Scotland) at www.publicguardian-scotland.gov.uk.
You may be able to apply to the sheriff court to be appointed as a guardian or intervener to act on behalf of someone who can no longer manage their affairs. Guardians and interveners can be granted powers to operate bank and building society accounts, see Intervention and guardianship orders.
The British Bankers’ Association has produced a useful guide called 'Banking for people who lack capacity to make decisions' where you can find out more about these options, including the Access to Funds Scheme. You can find it on their website at www.bba.org.uk.
Someone who is unable to act on their own behalf may be the beneficiary of a trust. If you need help with the setting up or administration of a trust, you may need to go to a solicitor. The Office of the Public Guardian (Scotland) has information about whether someone with a guardianship order has powers to set up a trust on behalf of an adult unable to act on their own behalf at www.publicguardian-scotland.gov.uk.
ENABLE Scotland has a service that look after trusts for people who have learning disabilities and has some information on their website at www.enable.org.uk.
For information on using a will to set up a trust, see Wills.
Welfare benefits and tax credits
You may be able to collect benefits, including state pensions, or tax credits for someone who is unable to do this for themselves.
Someone can contact their bank or building society to arrange for you to collect any benefits or tax credits that are paid into their accounts. They may have to fill out a third party mandate, see Bank and building society accounts.
If the money is paid into a post office card account and will need to be collected by you regularly, they can contact their post office and ask about arranging for you to collect it. If they appoint you to do this, they can apply for a second card for you to use for the account. This means that your withdrawals can be tracked separately from theirs. Neither of you should disclose your PIN number, or be asked to disclose your PIN number by anyone.
If someone's benefits or tax credits are normally paid by cheque, they can fill in the back of the cheque to allow you to cash it for them. They should contact the office that deals with their benefits or tax credits payments if they want you to cash a benefit or tax credits cheque for them on a regular basis. If they do not receive the payment by cheque and do not have an account to pay the money into they can get a Simple Payment card. The person who regularly collects the benefit or tax credit can also get a Simple Payment card of their own. There is more information on the UK government website at www.gov.uk.
They may need you to deal with all aspects of their benefits or tax credits, not just collecting payments. This could involve doing things like:
- filling in claim forms
- answering queries and letters
- informing benefit or tax credit offices about any changes of circumstance.
If this is the case, you will have to be made their appointee. The appointee should contact the office that deals with the person's benefits and will need to fill in an application form. A member of staff from that office will then arrange to visit you both. You can organise to cash tax credits for someone without a home visit when you apply for the tax credit.
If someone grants a power of attorney in your favour it can include the power to deal with their benefits or tax credit, see Powers of attorney.
The court can appoint an intervener or guardian who can also deal with the benefits and tax credits for someone who can no longer manage their own affairs, see Intervention and guardianship orders.
Powers of attorney
What is a power of attorney
A power of attorney is a legal document in which someone (the granter) appoints a person, or people, of their choice (the attorney/s) to act on their behalf. It states what things they would like their attorney to be able to do for them. A power of attorney can be effective right away, or can specify that it cannot be used unless the granter becomes incapable of managing their own affairs. In order to grant a power of attorney, the granter must be capable of making decisions for themselves, see What does it mean if someone is incapable of managing their affairs.
Someone can grant you a general power of attorney for a limited period, for example when they are on holiday or in hospital. When a power of attorney is drawn up for this kind of reason it does not need to be registered with the Office of the Public Guardian unless the granter wants it to continue if they become incapable. However, the information that follows relates only to the types of powers of attorney that will continue or begin when someone becomes incapable of managing their own affairs, and not to general powers of attorney.
When should someone think about making a power of attorney
Ideally everyone would think about making a power of attorney as an insurance policy, in the hope that it will never be needed, or, in any event, long before it is likely to be needed. If someone loses capacity and there is no power of attorney in place, it may be very difficult (and often impossible) for banks, doctors and social workers to co-operate with family members in their best interests. Without a power of attorney you may not be able to act on someone’s behalf without legal authority, even if you are their partner or close relative. You will need to take further steps, for example, making an application to the sheriff court for an intervener or guardian to be appointed. This can be an expensive and lengthy process. See Intervention and guardianship orders.
Although it is often older people who become incapable of looking after their own affairs, it can also happen to young people, sometimes temporarily, as a result of an accident or mental illness.
Types of power of attorney that continue or begin when someone becomes incapable of managing their affairs
There are three types of power of attorney that will continue or begin when someone becomes incapable of managing their own affairs. A power of attorney document must be worded in such a way as to make it clear which type of power of attorney is being granted.
Continuing power of attorney (sometimes called financial power of attorney)
A continuing power of attorney will allow you to take care of the granter’s day-to-day finances, and (depending on exact wording of the power of attorney) do things like pay bills, deal with their bank accounts, collect benefits and money payable to them, and buy or sell property. These powers can be used when the granter is still capable and can continue to be used if they can no longer manage their own affairs. Alternatively, the power of attorney can specify that it can only be used when the granter is no longer capable of managing their own affairs. A doctor will then need to certify that they have lost the power to make financial decisions before you can start using your powers.
Welfare power of attorney
A welfare power of attorney allows you to make decisions on behalf of someone else about their personal welfare. This can include decisions about care arrangements, where the granter lives, their clothes, diet and leisure activities; and giving or withholding consent to medical treatment. As a welfare attorney you may have access to personal information, such as health records, if this is specified in the power of attorney.
These powers can only be used when the granter has stopped being able to look after themselves because of incapacity. A doctor will need to certify that they have lost the power to make welfare decisions before you can start using your powers.
Combined (welfare and continuing power of attorney)
Combined powers of attorney include both welfare and financial powers. The financial powers can be effective immediately. They will remain in place even if the granter subsequently becomes incapable of managing their own affairs. The welfare powers can be used only if the granter has become incapable of managing their own welfare.
How to make a power of attorney
Who can grant a power of attorney
Anyone who is over 16 and mentally capable of granting of the powers specified in it at the time of signing it can grant a power of attorney.
A power of attorney must incorporate a certificate in which a solicitor, advocate or doctor states that they:
- have interviewed the granter immediately before the document is signed
- are satisfied that, at the time of signing, the granter understands what is being signed
- have no reason to believe that the pressure or undue influence has been put on the granter.
In many cases it will be obvious that the granter is capable of understanding the power of attorney. However, if the granter appears to be failing in capacity, recent medical evidence may be needed before the certificate can be signed. See What does it mean if someone is incapable of managing their affairs.
Responsibilities of an attorney
Anyone who is over 16 and mentally capable can be a welfare attorney. Anyone who is over 16 and mentally capable can be a continuing attorney, as long as they have not been declared bankrupt. If you are appointed as an attorney you are placed in a position of trust and must act in the best interests of the granter, who is likely to be a partner, relative or close friend. You will need to carry out your duties, which include keeping basic records and accounts, with care. For more detail, see the Code of Practice for Continuing and Welfare Attorneys, which can be downloaded from the Scottish Government website at www.gov.scot. It includes information on what someone can do if they suspect an attorney is abusing their powers. You cannot delegate any of your duties unless the granter has authorised this. You should talk to the person who is granting the power of attorney in your favour to make sure you are both clear about what they expect you to do.
A power of attorney that is intended to continue or begin when someone becomes incapable of managing their own affairs will need to be registered with the Office of the Public Guardian for Scotland in order to be valid, unless it was made before 2001. Once it has been signed it should be registered as soon as possible. The Office of the Public Guardian checks powers of attorney and will return them for amendment, if required, prior to registration. A power of attorney can be registered online on the Office of the Public Guardian website at www.publicguardian-scotland.gov.uk. If the granter loses capacity before the document can be registered, it cannot be a valid power of attorney. You need to indicate your willingness to act as an attorney on the Public Guardian’s registration form. Once the power of attorney has been registered you should keep the Office of the Public Guardian’s certificate of registration and a copy of the power of attorney in a safe place. The Office of the Public Guardian can provide information (but not legal advice) and can supervise continuing attorneys if directed to by a court. The Mental Welfare Commission for Scotland has powers to supervise those who have control over someone’s welfare.
Can more than one attorney be appointed
The granter can appoint more than one attorney. It may make sense for the granter to grant different powers to each attorney if, for example, one of their adult children is more comfortable keeping financial records, and another lives closer to the granter and will find it easier to liaise with social workers or carers. Someone can also appoint an organisation like a firm of solicitors or accountants, or a financial institution to be their financial or continuing attorney. A welfare attorney must be an individual. It may also be sensible to appoint substitute attorneys in case your attorney (or one of your attorneys) is no longer able to act. This will help to ensure that the granter is not left without anyone to manage their affairs. Make sure that you are clear about what you are expected to do, and, if appropriate, how you will work with the other attorney(s).
Does someone need a solicitor to draft a power of attorney
You should get legal advice if you want to make a power of attorney. Although there is no prescribed form of wording, certain registration requirements need to be met before a power of attorney can be registered by the Office of the Public Guardian. A solicitor can sign the certificate that needs to be incorporated with a power of attorney. They may also be able to apply for legal aid on behalf of the granter. The wording of the power of attorney is crucial and the powers granted must be tailor made to the granter’s needs. If you go to see a solicitor with the person whose affairs you are thinking of managing, they may need to ask the granter a few questions on their own to ensure that there is no conflict of interest and that you are not influencing their decisions unduly.
Although the Office of the Public Guardian cannot provide legal advice and recommends that the granter consults a solicitor about making power of attorney, there is an example of a power of attorney on their website, which will give you both an idea of what a power of attorney looks like and the specific types of powers that are typically granted to attorneys, see www.publicguardian-scotland.gov.uk.
It is not usually a good idea to use the pre-printed forms which you can get in shops or on the internet. If you see the terms ‘enduring power of attorney’, ‘lasting power of attorney’ or ‘donor’ on a form, it has not been drafted with Scots law in mind and it will not be registered by the Office of the Public Guardian.
Your local Citizens Advice Bureau can help you to find a solicitor or you can look on the Law Society of Scotland’s website.
There is guidance to making a Power of Attorney on the Office of the Public Guardian’s website at www.publicguardian-scotland.gov.uk. It is written with people who are granting a power of attorney in mind. You may wish to give it to the person’s whose affairs you are thinking about managing to help them decide if they want to grant a power of attorney.
How can you help someone who has not made a power of attorney and is unable to manage their own affairs
Intervention and guardianship orders
If no power of attorney is in place and a family member or close friend is suddenly unable to deal with their own affairs as a result of mental or physical incapacity, it may be possible for you to be appointed as an intervener or guardian. This is done by applying to the sheriff court. This can be a complicated and lengthy process and the Office of the Public Guardian recommends that you get help from a solicitor. Legal aid may be available.
The court can issue intervention and guardianship orders that cover financial matters or welfare matters, or both. An intervener can be appointed when someone needs authority for a one off action or to make a single decision, for example selling a home or deciding what medical treatment is best for that person at a particular time. A guardian can be appointed when there are several issues to be dealt with and decisions will need to be made to manage someone’s affairs on an ongoing basis, for example running a trust.
You can find the relevant forms, guidance notes and information on how to apply on the Office of the Public Guardian’s website at www.publicguardian-scotland.gov.uk for intervention orders and at www.publicguardian-scotland.gov.uk for guardianship orders. The forms will need to be completed and sent to the court with two medical reports and other supporting documentation. Your solicitor will co-ordinate the reports and draft the necessary paperwork. If you or someone else close to the adult with incapacity cannot take on the responsibility of being an intervener or guardian, someone from their local authority’s social work department can apply.
The Office of the Public Guardian supervises orders dealing with money or property, and can investigate complaints about the misuse of these powers. The local authority social work department supervises guardians and interveners with welfare powers. The Mental Welfare Commission also has powers to protect the interests of adults with incapacity due to mental disorder, including the power to investigate complaints. There is more information on welfare guardianships on their website at www.mwcscot.org.uk .
You can find a helpful leaflet explaining what being an intervener or guardian involves called 'Guardianship and Intervention Orders – making an application: A Guide for Carers' on the Scottish Government’s website at www.gov.scot .
The Access to Funds Scheme can also be used for certain financial matters. See Banks and building society accounts.
Office of the Public Guardian (Scotland)
Callendar Business Park
Tel. 01324 678300
Fax: 01324 678301
Mental Welfare Commission for Scotland
91 Haymarket Terrace
Freephone for service users and carers: 0800 389 6809
Textphone callers please dial 18001 before freephone number to access RNID relay assist
Tel: 0131 313 8777
Fax: 0131 313 8778
Scottish Legal Aid Board Helpline
Tel: 0845 122 8686