Power of Attorney question (Scots Law)

[Shenanagins]

A vulnerable family member has recently appointed their care assistant to act as their POA. The care assistant is also the main beneficiary of the vulnerable person's estate with their OH acting as executor.

The family are not interested in who benefits from the will but are concerned that the vulnerable person may be taken advantage of. The prime concern is that they are put out of their mortgage free home and placed in a care home when it is not required and the house is sold with the proceeds going to the care assistant.

In addition to the mortgage free home, the vulnerable person also has considerable assets.

The family would like reassured that the law would protect the vulnerable person from such events happening. Additionally, is this a breach of some sort of professional code of conduct for care assistants to act in such a capacity.

TIA

[mumblechum1]

I suggest you contact the Scottish Office of the Public Guardian. I don't practice in Scotland, but in England and Wales, part of the LPA application procedure is that a notice is sent out usually to a close relative, who has the opportunity to object.

it sounds decidedly dodgy to me and the Scots version of the OPG will, I'm sure, be able to advise you.
www.publicguardian-scotland.gov.uk/

[VByzant]

The difference in law across the border are fascinating. Mumblechum is totally right you should check the OPG website and give them a ring, they will be able to confirm if a power of attorneys in place.

In Scotland because a POA is someone with capacity making a decision about their future there is no duty of notification. All the person needs to do is see a lawyer(not always) who satisfies themselves that the person has capacity and draws up the powers requested. This is then witnessed and registered with the OPG, making it a valid attorney. The person grnating the powers can recall them but other people cannot when the person continues to have capacity, and after they lose capacity if there are concerns about a POA which needs to be revoked this involves asking for a hearing in front of the sheriff.
Its important you are clear that the poa and will are totally separate issues. The POA may be either welfare, financial(continuing) or both. A welfare POA sets out various powers for example to determine where someone lives, how they receive care, dress ect and these powers only apply when they meet the triggering clause of the POA, which is a line saying how they want it to be determined that they lack capacity, often a doctors assessment. A continuing POA can grant powers to manage finance and assets, this can be done while the person has capacity if they wish. This includes authorising the disposal of assets for example a house.
However if your aunt goes into care in Scotland her home will be considered in her charge and if sold her POA will be responsible for paying the fees from this. There is no logical way have a poa would allow the care worker to take money from the estate for her own use (aside from reasonable expenses).
If you are concerned your aunt is being abused contact social work, who will investigate under ASP, however if she has capacity and wishes this lady to make decisions for her, that is her right just as you or I could decide to let our DP or DC do it at any point, unless you have strong evidence that she is being coerced.

[VByzant]

Sorry for the long reply, the guidance used to bar paid carers from taking on a POA( in my understanding) but this is not the case now. The company the person works for may have different views. It comes down to the adults choice, unusual in my experience for a paid worker to be chosen if there is an involved family, but again this is all about the adults choice.

[Shenanagins]

mumblechum1 and VByzant thankyou for taking the time to reply, we really appreciate it.

Unfortunately due to distance the family are unable to be of practical assistance but are still concerned for the welfare of our relative and that they can't be financially abused - there is no evidence that this is happening but we just want to know there are safeguards in place as we do hear the horror stories in the media.