PART 2 CONTINUING POWERS OF ATTORNEY AND WELFARE POWERS OF ATTORNEY

16 Creation and exercise of welfare power of attorney

1

An individual may grant a power of attorney relating to his personal welfare in accordance with the following provisions of this section.

2

In this Act a power of attorney granted under this section is referred to as a “welfare power of attorney” and an individual on whom such power is conferred is referred to as a “welfare attorney”.

3

A welfare power of attorney shall be valid only if it is expressed in a written document which—

a

is subscribed by the granter;

b

incorporates a statement which clearly expresses the granter’s intention that the power be a welfare power to which this section applies;

F1ba

states that the granter has considered how a determination as to whether he is incapable in relation to decisions about the matter to which the welfare power of attorney relates may be made for the purposes of subsection (5)(b);

c

incorporates a certificate in the prescribed form by F2a practising solicitor or by a member of another prescribed class that—

i

he has interviewed the granter immediately before the granter subscribed the document;

ii

he is satisfied, either because of his own knowledge of the granter or because he has consulted F7another person (whom he names in the certificate) who F8has knowledge of the granter, that at the time the welfare power of attorney is granted the granter understands its nature and extent;

iii

he has no reason to believe that the granter is acting under undue influence or that any other factor vitiates the granting of the power.

4

F3A practising solicitor or member of another prescribed class may not grant a certificate under subsection (3)(c) if he is the person to whom the power of attorney has been granted.

5

A welfare power of attorney—

a

may be granted only to an individual (which does not include a person acting in his capacity as an officer of a local authority or other body established by or under an enactment); and

b

shall not be exercisable unless—

i

the granter is incapable in relation to decisions about the matter to which the welfare power of attorney relates; or

ii

the welfare attorney reasonably believes that sub-paragraph (i) applies.

6

A welfare attorney may not—

a

place the granter in a hospital for the treatment of mental disorder against his will; F4...

b

consent on behalf of the granter to any form of treatment F5in relation to which the authority conferred by section 47(2) does not apply by virtue of regulations made under section 48(2)F6;

c

make, on behalf of the granter, a request under section 4(1) of the Anatomy Act 1984 (c. 14);

d

give, on behalf of the granter, an authorisation under, or by virtue of, section 6(1), F1016F(1)(a), 17, 29(1) or 42(1) of the Human Tissue(Scotland) Act 2006 (asp 4);

F9da

withdraw an authorisation, on behalf of the granter, by virtue of section 6A(1) of that Act;

db

make, on behalf of the granter, an opt-out declaration by virtue of section 6B(1) of that Act;

dc

withdraw an opt-out declaration, on behalf of the granter, by virtue of section 6C(1) of that Act; or

e

make, on behalf of the granter, a nomination under section 30(1) of that Act

7

A welfare power of attorney shall not come to an end in the event of the bankruptcy of the granter or the welfare attorney.

8

Any reference to a welfare attorney—

a

in relation to subsection (5)(b) in a case where the granter is habitually resident in Scotland; and

b

in subsection (6),

shall include a reference to a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and having effect during the granter’s incapacity.