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Widow's power of attorney rejected by court

21 July 2010

A sheriff has directed the Public Guardian not to register a continuing power of attorney granted by an 87-year-old childless widow because he was not satisfied that she properly understood its effect at the time she signed it.

The case was brought to court by the Public Guardian, Sandra McDonald, for directions as to whether she should register the document and is the first time she has questioned in this way whether she should accept such a deed.

It arose following concerns raised by  woman referred to as "C", a longstanding family friend and former solicitor, who held an earlier power, that the person in whose favour the new power was granted ("E") had been persuading the widow ("A") to make regular withdrawals of cash from her bank account. On one occasion E had also persuaded A to give E £4,000 from her savings.

Sheriff John Baird at Glasgow Sheriff Court accepted the evidence of Dr Derek Brown, a consultant psychiatrist, that as at the date the power was granted, E was suffering from a degree of dementia and did not have the capacity to understand the nature of the deed she was granting, or the effect of revoking the previous deed.

He also ruled that a solicitor referred to as D, who had drafted the power of attorney and a will executed at the same time, and had signed the required statutory declaration that D was satisfied that A had capacity to grant the deeds, had not made sufficient checks to properly satisfy themselves. D had been introduced to A by E and had met her twice (in E's presence), but had not enquired why she wished to change her solicitor, or made any enquiry ino an allegation, which the sheriff held unfounded, that C hd been acting improperly.

The sheriff commented: "As the safeguarder put it, all of this pointed to the need for caution, and while D maintained that all A had wanted was to let E have access to her accounts, with no other detail, it was precisely that lack of detail which ought to persuade the practitioner to make much greater inquiry of such a client prior to accepting instructions and before being prepared to sign the statutory declaration required."

Click here to read the sheriff's judgment.


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