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Public Guardian acts to calm power of attorney worries

17 August 2017

Scotland's Public Guardian has acted to calm fears over the granting of powers of attorney, following broadcast remarks by a fomer judge of the Court of Protection in England & Wales.

Interviewed on BBC Radio 4, Denzil Lush, who recently retired after 20 years as senior judge in the Court of Protection, warned of the lack of safeguards surrounding the granting of powers of attorney and stated that he would never sign one himself. He cited the case of an 83 year old man – already suffering from dementia – who granted a power in favour of his neighbour, who then withdrew large sums from the man's bank account and paid his own bills with them.

Mr Lush, the co-author of a textbook on the law in this area, said he would prefer the appointment of a deputy by the Court of Protection. Scotland has no such court.

Sandra McDonald, the Public Guardian in Scotland, said that following the interview her inbox had "gone manic with Scottish lawyers anxious about what they say to reassure clients”. In a statement she pointed out that there are fundamental differences between the way powers of attorney are managed north and south of the border. 

Safeguards in the Scottish system, the statement continued, include:

  • An assessment of capacity is required; a lawyer or doctor has to testify that the person granting the power of attorney is aware of what it is, what powers (i.e. authority) they are granting, to whom, and that they are under no pressure to so act. This capacity assessment is a critical safeguard.
  • The majority of documents granting power of attorney in Scotland are drafted by solicitors on client instruction. This follows a detailed, and private, discussion between solicitor and granter. This legal involvement offers a significant protection.
  • The style of power of attorney in Scotland is directive, i.e. powers are specific; the extent of the authority of the attorney is explicit.

Other safeguards are similar within the two systems:

  • the Public Guardian maintains a central register of orders;
  • the Public Guardian is able to remit to court any matters of concern;
  • the Office of the Public Guardian is able to receive reports and can inquire into the financial affairs of an incapable person where these affairs appear to be at risk.

Ms McDonald also pointed out that there is a code of practice which assists attorneys in their role, and statutory principles which an attorney is obliged to respect. The Law Society of Scotland has also issued comprehensive guidance on assessing capacity and taking instruction from this client group.

Open letter

Legal practitioners have also responded to Mr Lush's comments. In an open letter, Ernest Boath, head of private client at Tayside firm Miller Hendry, wrote: "In the vast majority of cases the benefits of having a power of attorney in place to enable a trusted family member and loved one, very often a spouse, son or daughter, to look after your affairs if you became incapable of doing so yourself, far outweighs those risks [of theft or fraud]."

It was much less expensive, he commented, than guardianship, the Scottish equivalent of court appointed deputies, and 
"With a power of attorney, it is entirely in your own hands who to appoint to look after your affairs in the event that you should become incapable of doing so in the future."

Mr Boath added: "Undoubtedly there is a risk that families might fall out about the best way to look after an incapable relative's affairs, or that an unscrupulous and criminal individual might take advantage of the appointment to steal someone's assets. The reality is that there is a such a risk in all aspects of life and in Scotland there are extra safeguards in place at the time of inception of the power of attorney.

"Power of attorney granted in favour of someone you trust implicitly, remains a very useful and important part of an individual's personal future planning which should always be considered. Where there has been a clear breach of that trust resulting in theft the perpetrator can be easily identified and brought to justice."

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