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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10913
Experience:  30 years as a practising solicitor.
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My friend is 75 and a widow. She was diagnosed with dementia

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My friend jane is 75 and a widow. She was diagnosed with dementia 2 years ago. She is starting to struggle with more complex daily activities such as cooking and now prefers to stay at home apart from going out with me and attending church services and socials. However her communication skills are still quite good and in the moment she can hold a conversation about almost anything though her short term is now quite poor. Her nearest relative, her son P, lives 50 miles away. P has attorney powers for financial and welfare matters: he pays the bills and orders the weekly shop online. I visit Jane daily to make sure she is eating the ready meals that P orders and help her
around the house. When P was away on holiday I took Jane to the bank where a bank worker said she just wanted to check that Jane was aware of large sums being withdrawn; most recently £5000 was transferred to a travel company. Jane was clearly taken aback but defended her son and refused the bank worker’s suggestion of contacting social services. I've decided to phone social services because Jane will soon need her savings for paying for care if she's going to stay at home as long as possible.
Could you explain the legal issues which arise from this and any advice you would give to each of us involved.
Submitted: 2 years ago.
Category: Scots Law
Expert:  JGM replied 2 years ago.
Thank you for your question.
The main issue is that you have to make sure that Jane understands that her son removing funds from her account could have issues for her longer term. She may not want to get the son into trouble and may even ratify the withdrawals but if they go on, it could have an effect as and when she needs to go into care. However, there is no doubt that this is theft, where the son is not using the money for the benefit of his mother, as an attorney must do.
As for you phoning social services, my concern is that that could be counter productive and create an involvement that Jane doesn't want. Once social services get involved it will be very difficult to stop them being involved and this may cause upset, distress and adverse consequences healthwise.
I suggest that you have Jane call her son so that she can indicate to him her shock that large sums have been withdrawn and it will be for her to decide if she wants the son to continue as attorney. You may have other ideas as to how this could be handled apart from contacting social services which may be worthy of consideration, if for example there are other children who could be contacted. I don't advocate contacting social services unless you don't think there is any alternative.
You could also contact the Office of the Public Guardian which has an investigation section which is accustomed to dealing with this kind of thing. See www.publicguardian-scotland.gov.uk/investigations
I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 2 years ago.

I have contacted social work so we would like to know the specific laws related to this,

Customer: replied 2 years ago.

I need to know specific Scottish law information like legislation about what social work will do

Expert:  JGM replied 2 years ago.
The specific laws are that an attorney has to act in the best interests of the ward and can't use the money for personal purposes unless specifically authorised to do so either within the power of attorney document or directly from the ward.
The law on powers of attorney and related issues are contained within the Adults With Incapacity (Scotland) Act 2000.
The other law here is the common law of theft which is what the son appears to have done.
Social work has no locus here at all, frankly, and should not be involved. The Office of the Public Guardian is the correct place to go with this. Why did you go to the social work department? This is not a welfare issue. It is a financial issue? I truly hope you haven't stirred up a hornet's nest for your friend. The social work department will do nothing other than assess capacity and you said that your friend has capacity to make decisions.
Expert:  JGM replied 2 years ago.
Section 20 of the Act I refer to above gives powers to the sheriff
Subsection (1) establishes the right to apply for an order from the sheriff. Anyone who claims
an interest in the property, financial affairs or welfare of an adult who has granted a continuing or
welfare power of attorney can apply. This provides a forum for interested parties to express their
concerns about the attorney.
Subsection (2) limits the sheriff's power to intervene to cases where the granter has lost capacity
and it is necessary to promote or safeguard the adult's interests. If a granter still has the capacity
to supervise the attorney, it would be unnecessary to give the sheriff authority over that arrangement,
as the granter can supervise their own affairs. You mentioned that your friend still has capacity. The extent of that would need to be considered.
Subsections (2)(a), (b), (c) and (d) set out what orders the sheriff can make to safeguard the
granter's interests. The sheriff may order a continuing attorney to be supervised by the Public
Guardian, or a welfare attorney to be supervised by the local authority. The sheriff may order a
continuing attorney to submit accounts for audit by the Public Guardian. These accounts may be
requested for any period when the attorney has acted, even while the granter retained legal capacity,
to allow an overall picture of the attorney's management of the granter's estate. The sheriff may
also ask a welfare attorney for a report on the exercising of their powers.
Subsection (2)(e) gives the sheriff the right to make an order revoking any of the powers the
attorney is allowed to exercise, or to terminate their appointment. The Act does not, however, allow
the court to vary the attorney's powers, since this would run counter to the granter's original intention.
Subsection (3) provides for the communication of any order the sheriff has made to the Public
Guardian. The Public Guardian will record the order in his register and notify those listed in
subsection (3)(b).
Subsection (4) states that the decision of the sheriff to order Public Guardian or local authority
supervision of an attorney or requiring accounts or reports from a welfare attorney or that such an
order is not required, is final.
Subsection (5) provides for the court to make orders as in this section to apply to foreign, as
well as Scottish, continuing and welfare attorneys. This provides safeguards for granters who live
or are present in Scotland, but who have appointed an attorney under the law of another country.
That is the law which I hope is of assistance to you.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10913
Experience: 30 years as a practising solicitor.
JGM and 2 other Scots Law Specialists are ready to help you

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