Commentary on Provisions Part 5 – Appointees Section 16: Liability of appointees under sections 85A and 85B of the 2018 Act
81.This section of the Act inserts a new section 85G into the 2018 Act on the liability of persons appointed to act on behalf of an individual in receipt of social security assistance under sections 85A, 85B or 85F. Where an appointee uses any funds of the individual for whom the appointee is acting in breach of the appointee’s common law fiduciary duty of good financial management, in breach of the appointee’s common law duty of care towards the individual, or outwith the appointee’s statutory authority under section 85A or 85B, the appointee is liable to repay those funds to the individual.
82.However as per subsection (2) of inserted section 85G the appointee is not liable under subsection (1) for any breach as described in subsection (1) where the appointee has acted reasonably and in good faith, or where the appointee has failed to act and that failure was reasonable and in good faith.