A recent case before Stirling Sheriff Court has highlighted the serious responsibilities placed on anyone appointed to manage a loved one’s finances under a Power of Attorney. Jennifer Currie-Jenkins, 43, admitted embezzling £140,983 from her father while acting as his attorney. The court heard that the misuse of funds contributed to unpaid care home fees and placed his care arrangements at risk. Sheriff Euan Gosney described the matter as going “way beyond” paying for food or general living expenses.
The case is a stark reminder that being appointed as an attorney is not simply an informal family arrangement. It is a position of significant trust, carrying clear legal duties.
In Scotland, a Power of Attorney allows a person, known as the granter, to appoint someone else to make decisions or take action on their behalf. This may include dealing with property and financial affairs, welfare matters, or both. Powers of Attorney are extremely useful documents and can provide reassurance that, if someone becomes unable to manage their own affairs, a trusted person can step in.
However, the attorney must act for the benefit of the adult. The principles under the Adults with Incapacity framework require any action or decision to benefit the adult, be the least restrictive option, and take account of the adult’s wishes and feelings where possible.
This means that an attorney cannot treat the adult’s money as their own. The fact that the attorney is a close relative, or may expect to inherit in the future, does not change that. The adult’s funds remain the adult’s funds. They should be used for the adult’s needs, such as care fees, household costs, personal expenses, property maintenance and other matters genuinely connected to their welfare and financial interests.
Continuing attorneys also have important practical duties. The Office of the Public Guardian guidance states that attorneys must keep records of how they use their powers and that the adult’s money and property should be kept separate from their own.
In family situations, boundaries can sometimes become blurred. A parent may previously have made gifts to children or helped with family expenses. However, once someone is acting as attorney, the question is not simply, “Would they have given me this money?” The question is whether the payment is authorised, properly recorded and genuinely in the adult’s interests.
Anyone acting as an attorney should therefore take care to:
- keep clear records and receipts;
- use separate bank accounts;
- avoid cash withdrawals unless clearly documented;
- ensure bills, care fees and essential expenses are prioritised;
- avoid making gifts or loans without proper advice;
- seek legal advice if there is any uncertainty.
If relatives are concerned that an attorney is misusing funds, the Office of the Public Guardian can consider concerns where an incapable adult’s property or financial affairs may be at risk.
A Power of Attorney remains one of the most important documents a person can put in place. Used properly, it protects dignity, independence and family decision-making. But it must be treated seriously. Attorneys are not acting for themselves; they are acting for the adult, and every decision should reflect that responsibility.
At Gibson Kerr, we can advise on preparing Powers of Attorney, choosing suitable attorneys and understanding the duties involved.
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