Managing affairs for someone else
This information applies to Scotland
Coronavirus - Public Guardian's office and guardianship orders
Powers to manage someone's affairs might need to be arranged or commenced from a registered power of attorney document. There is guidance about a temporary online process on the Office of the Public Guardian website that can be used. The Office of the Public Guardian is dealing only with urgent business.
From 7 April 2020 guardianship orders already in force made by a sheriff court were covered by emergency powers not to expire. These powers end on 29 September 2020. From 30 September 2020 the 'clock starts to run' again. You can work out the new expiry date by adding 176 days onto the expiry date on the order. This gives you a new expiry date. There is more information on the Public Guardian for Scotland website.
If you need a solicitor
Most solicitors are likely to be carrying on with business, but it is unlikely you will be able to see one face-to-face. You should be able to contact one by email or phone and arrange for an online consultation.
What can you do when you manage 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.
Managing affairs straight away or only when the person can't manage themselves
Someone can arrange for you to manage their affairs right away, or only when they can't manage their own affairs anymore. 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.
Although a lot of material on managing someone’s affairs is available online, much of it won't apply in Scotland. This is because the relevant law and procedures are often different in the rest of the UK.
When you need to manage someone’s affairs
You might need to manage someone's affairs if they:
- are disabled or have mental health problems, either temporarily or long-term
- aren't able to communicate, perhaps because of a stroke or severe sensory impairment
- feel unable to make decisions for themselves
- have learning difficulties
- are taking decisions that are not in their best interests, for example, overspending or making unnecessary purchases.
- are out of the country for a while.
It's best to make arrangements before they're needed, for example, by granting power of attorney or writing a mandate. But there are things you can do if someone you know is already unable to manage their own affairs.
If someone is incapable of managing their affairs
Someone over 16 who is incapable of managing their own affairs or is unable to make or act on the decisions needed to look after their own affairs is known legally as 'an adult with incapacity' or 'lacks legal capacity'.
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.
In some cases a person may only need help with their financial affairs but in others a greater degree of assistance or supervision might be required, for example, with issues of personal welfare.
What does managing someone's affairs involve
When 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.
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.
How to start managing someone's affairs
The way you can get powers to manage someone’s affairs depends on whether they can grant these powers themselves, and what you need to do for them.
Some types of powers, like power of attorney, can only be granted when the person granting them has ‘mental capacity’. This means they understand the nature and extent of the powers they will grant.
Someone who is unable to decide to grant powers to manage their affairs is known as an adult with incapacity.
The different ways you can look after someone's affairs include:
- a letter or a third party mandate from them, to deal with a bank, building society or other financial account
- with power of attorney if someone planned ahead and gave you permission to deal with their affairs. Check the different types of power of attorney
- as a withdrawer authorised by the Public Guardian under the Access to Funds Scheme
- as an intervener or guardian appointed by court order, to help someone who hasn't made a power of attorney
- as a trustee
- as an appointee to deal with welfare benefits or tax credits
You might want to discuss these options with the person whose affairs you will manage, and your local Citizens Advice Bureau can give more advice. Check where to get advice.
If you need to manage bank and building society accounts
There are different ways you can help manage someone’s money. A person that still has capacity but needs support might open a joint account, or they can write to their bank to give you permission to deal with their account. You might have permission to deal with their accounts through power of attorney. If power of attorney hasn’t been arranged and they no longer have capacity, then you might need to take formal action, like applying to the Office of the Public Guardian or sheriff court.
You can open an 'either to sign' joint account with someone who would like you to be able to deal with funds in that account. The terms of the account might 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 without the other's permission. If the account goes into overdraft, you will both be responsible for the whole amount of the debt. This is called joint and several liability.
If someone needs you to operate a bank account for them on a temporary basis they can 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 tell someone your PIN. You shouldn't be asked to disclose it by your bank or building society, or the person you have nominated to deal with your account.
Powers of attorney over the account
If you need to deal with more than one account, or to manage their financial affairs over a longer period, they might want to make a power of attorney. Their bank or building society might ask them to sign a basic power of attorney, often using their own standard document. This authorises you to carry out specific tasks in relation to their accounts. Check types of power of attorney.
Access to funds scheme
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. The scheme lets individuals or organisations 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 Office of the Public Guardian Scotland website.
Court orders to become a guardian or intervener
You can 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.
Find out more in the British Bankers’ Association guide on options, including the Access to Funds Scheme.
Someone who is unable to act on their own might be the beneficiary of a trust. If you need help with the setting up or dealing with a trust, you might need a solicitor. There's 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 on the Office of the Public Guardian (Scotland) website.
ENABLE Scotland has a service that look after trusts for people who have learning difficulties. Find out more about the trustee service on the Enable Scotland website.
You might want to leave money in trust for beneficiaries after you die. You can set up a trust when you write your will. Find out more about using a will to set up a trust.
Collecting benefits and tax credit payments
You might be able to collect benefits, including state pensions, or tax credits for someone who is unable to do this for themselves.
If someone's benefits or tax credits are paid into a bank or building society account, they should contact the bank or building society to arrange that they can be collected by you. You might need a third party mandate.
Post Office card account
If someone's money is paid into a post office card account and needs collected by you regularly, they can contact their post office and arrange for you to collect it. If they appoint you to do this, they can apply for a second card for you. This means that your withdrawals can be tracked separately from theirs. You should not tell someone else your PIN.
Payment Exception Service
If the person does not have an account to pay the money into they can use the Payment Exception Service. This means they are sent vouchers by text message, email or on a card. These can be redeemed at a PayPoint outlet which are often found in local newsagents or convenience stores.
You can request an additional card for yourself to collect the payments. You will need to take the person's card and ID, along with your own card and ID to be able to collect the payment. Find out more about the Payment Exception Service on GOV.UK.
Dealing with benefits or tax credits forms
You will need to be made their appointee if you have to deal with their benefits or tax credits, not just collect payments. This could involve:
- filling in claim forms
- answering queries and letters
- telling benefit or tax credit offices about any changes of circumstance.
An appointee can be a friend or relative, an organisation like a local authority or a solicitor.
You can apply to become an appointee by contacting the office that deals with the person's benefits and filling in an application form. A member of staff from that office will 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. Find out more about being an appointee on GOV.UK, including how to stop being an appointee.
If someone grants a power of attorney it can include the power to deal with their benefits or tax credit.
The court can appoint an intervener or guardian who can deal with the benefits and tax credits for someone who can no longer manage their own affairs.
Helping someone to vote
There are rules for the Electoral Registration Officer in each area about how assistance can be provided for someone to vote.
A person with the relevant power of attorney can help someone to complete a voting registration application and might also be asked to provide a 'declaration of truth'.
A person with power of attorney cannot vote on behalf of the person who has granted them power of attorney. You might find it helpful to contact your local electoral registration office to ask for more help in understanding what the power of attorney can and cannot do. Find your local electoral registration office on GOV.UK.
Powers of attorney
A power of attorney is a legal document that allows someone to choose a person, or people, to act on their behalf. The person that gives the powers is called the granter. The person that gets the powers to make decisions is called the attorney.
The document states what things the granter would like their attorney to be allowed to do for them. A power of attorney can be used right away, or only when the granter becomes incapable of managing their own affairs. In order to grant a power of attorney, the granter must still be capable of making decisions for themselves.
Check the Age Scotland power of attorney leaflet that explains the major issues for someone worried about losing their capacity and for someone thinking about becoming an attorney.
Time-limited power of attorney
Someone can grant you a general power of attorney for a limited time. For example when they are on holiday or in hospital. When a power of attorney is drawn up for this kind of reason it doesn't need to be registered with the Office of the Public Guardian, unless the granter wants it to continue if they later 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 to make a power of attorney
It's a good idea for everyone to plan for the future by making a power of attorney. It might be a long time before it's needed, or it might never be needed. If someone loses capacity to manage their affairs and there is no power of attorney in place, it might 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 might not be able to act on someone’s behalf without legal authority, even if you're their partner or close relative. You will need to take 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.
Although it's 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 injury or mental health problem.
Types of power of attorney
A power of attorney document must be clear about which type of power of attorney is being granted.
There are three types of power of attorney that can be used to manage someone's affairs:
- continuing power of attorney that deals with finances - can be used when someone can still take decisions themselves and then will stay in place if they stop being able to manage their own affairs
- welfare power of attorney - can only be used when someone is unable to take decisions themselves
- combined welfare and continuing powers - both welfare and financial issues can be dealt with by the attorney.
Continuing power of attorney
A continuing power of attorney, or financial power of attorney, allows you to take care of the granter’s day-to-day finances. It might also let you 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 say that it can only be used when the granter isn't capable of managing their own affairs. A doctor needs 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 lets you make decisions on behalf of someone else about their personal welfare. This includes 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 might 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 needs to certify that they have lost the power to make welfare decisions before you can use 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 later becomes incapable of managing their own affairs. The welfare powers can be used only when the granter is incapable of managing their own welfare.
How to make a power of attorney
Power of attorney has to be given by the granter to the attorney. Anyone over 16 and mentally capable of granting the powers covered in the power of attorney, at the time of signing it, can grant a power of attorney.
A power of attorney must include a certificate in which a solicitor, advocate or doctor states that they:
- have interviewed the person granting the powers immediately before the document is signed
- are satisfied that, at the time of signing, the person granting the powers understands what is being signed
- have no reason to believe that pressure or undue influence has been put on the person granting the powers
In many cases it will be obvious that the person granting the powers is capable of understanding the power of attorney. However, if they're failing in capacity, recent medical evidence might be needed before the certificate can be signed.
Your responsibilities if you have power of attorney
If you're appointed as an attorney you must act in the best interests of the person who has granted the powers.
For more detail, see the Code of Practice for Continuing and Welfare Attorneys on the Scottish Government website. It includes information on what someone can do if they suspect an attorney is abusing their powers.
Register with the Office of the Public Guardian
A power of attorney that will be used when someone becomes incapable of managing their affairs must be registered online or by post with the Office of the Public Guardian for Scotland, 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 needed, prior to registration. Find out how to register a power of attorney on the Office of the Public Guardian website.
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 there be more than one attorney
You can appoint more than one attorney. It might make sense for the granter to give different powers to each attorney. For example, if one of their adult children is more comfortable keeping financial records they can be granted financial powers, and if another lives nearby and will find it easier to talk with social workers or carers they can be granted welfare powers.
It is very important that attorneys can work together to make decisions for someone. The power of attorney document can state whether each attorney can make decisions on their own or if they always need to make joint decisions. If there are difficulties between attorneys this can make it very difficult for decisions to be taken and a court may have to solve any problems. This could be expensive and if the attorneys cannot agree they should get legal advice about what to do next.
An organisation like a firm of solicitors or accountants, or a financial institution, can be a financial or continuing attorney. A welfare attorney must be an individual. It might also be sensible to appoint substitute attorneys in case the attorney is no longer able to act. This helps to ensure that the granter isn't left without anyone to manage their affairs.
Do you need a solicitor to draft a power of attorney
You should get legal advice to make a power of attorney. The document must meet certain requirements 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 might also be able to apply for legal aid on behalf of the granter.
The wording of the power of attorney document is important and the powers granted must be tailor made to the granter’s needs. The solicitor might ask the granter a few questions to make sure that there's no conflict of interest and that they don't feel pressured.
The Office of the Public Guardian can't provide legal advice and recommends that the granter speaks to a solicitor about making power of attorney. There is an example of a power of attorney on the Office of the Public Guardian website. This shows what a power of attorney looks like and the specific types of powers that are typically granted to attorneys.
It's not usually a good idea to use the pre-printed forms which you can get in shops or online. 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 find a solicitor on the Law Society of Scotland’s website. Find out if you can get legal aid.
There is guidance to making a Power of Attorney on the Office of the Public Guardian’s website. You might want to give it to the person’s whose affairs you're thinking about managing to help them decide if they want to grant a power of attorney.
Helping someone who doesn't have a power of attorney
If no power of attorney is in place and a family member or close friend is suddenly unable to deal with their own affairs, it might 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. You might be entitled to legal aid. You can find a solicitor on the Law Society of Scotland website.
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.
The Scottish government guide for carers explains what being an intervener or guardian involves.
Forms and guidance notes
The forms need to be completed and sent to the court with two medical reports and other supporting documentation. Your solicitor will organise the reports and paperwork.
If you or someone close to the adult with incapacity can't take on the responsibility of being an intervener or guardian, someone from their local authority’s social work department can apply.
Complaints about the misuse of powers
The Office of the Public Guardian supervises orders dealing with money or property, and can investigate complaints about the misuse of these powers. Find out more about how the Office of the Public Guardian investigates complaints.
The local authority social work department supervises guardians and interveners with welfare powers. Contact the social work department to find out how to raise your concerns, or check the local authority website.
The Mental Welfare Commission also has powers to protect the interests of adults with incapacity due to mental health problems, including the power to investigate complaints. There is more information on welfare guardianships on the Mental Welfare Commission website .