Power of attorney in spotlight after high-profile case

Money is not the only issue to consider in PoAs, says Ryan Fox, partner in law firm Aberdein Considine

Aretired nurse made headlines recently after she was arrested for removing her 97-year-old mother from a care home before lockdown restrictions took effect.

Ylenia Angeli, 73, took “drastic action” due to a lack of face-to-face contact during the pandemic. She said she wanted to care for h e r m o t h e r, who has dementia, herself.

The family had a power of attorney (PoA) in place – but it only covered the grandmother’s finances, not her health and wellbeing. As a result, the family had no legal say over her care and Humberside Police were called to return her to the care home.

Ms Angeli was arrested as her daughter – exCoronation Street actress Leandra Ashton – looked on. Ms Ashton said her mother, who previously lived in Shetland, was pushed to “breaking point” as they were unable to see her grandmother for nine months. After the grandmother was returned to the home, Ms Angeli was released without further ac tion. So, what went wrong and what can a family living in Scotland do to avoid a similar situation?

What is a PoA?

It is a written document l e tt i n g you give legal authority to other people to make decisions on your behalf. It lists all of the specific powers you wish your attorneys to have.

Are there d i ff e r e n t types?

Yes – and that appears to lie behind the issue in the case of Ms Angeli and her m o t h e r, albeit under English law. In Scotland, a continuing PoA allows for decisions to be made about your property and financial affairs. A welfare PoA allows for decisions to be made about health and welfare matters, such as care provision in this case.

Most people arrange a combined PoA to allow decisions to be taken about their financial affairs and personal welfare.

Who can be attorney?

Someone you trust, who knows your wishes and feelings. Ensure you have the same understanding about how and when your PoA is to be used. Attorneys must be over 16 and if you give continuing powers, they must not be bankrupt. There is no limit to how many attorneys you have.

When does your PoA start?

If you want to give continuing powers, you need to decide when the attorneys are to begin. It could be right away or at a later date. Welfare PoAs start when you become your incapable decisions.

How is your “incapacity” determined?

If your attorney is only to make decisions for you if you become incapable, you will need to think about how your incapacity is to be determined.

Where can you PoA drafted?

A solicitor can help you draft a PoA and give you legal advice. Once your PoA is drafted, you will need to be interviewed by either a solicitor or medical practitioner to ensure you understand what you are doing. If they are satisfied, they will complete and sign a certificate. Your attorneys must also confirm they are willing to act for you.

Once all of this is in place, your PoA must be registered with the Office of the Public Guardian in Scotland to be valid. Your solicitor will do this. of making get a

FAMILY DRAMA: Ylenia Angeli told of her arrest as daughter Leandra Ashton looked on. Picture courtesy of ITV.