Could your Power of Attorney be invalid? We were recently consulted by two clients wishing to apply for Guardianship of Mrs W, who had lost capacity to act on her own behalf. The application was sent to The Office of the Public Guardian ("OPG"), who advised that they already held a Continuing Power of Attorney for Mrs W on their register, granted in favour of a Bank in 2008. Mrs W had never mentioned this and the Applicants were unaware of its existence. Although the Applicants had alerted their Bank to Mrs W's deteriorating mental health in 2013, the Bank had taken no steps to exercise their powers as Continuing Attorney. The Applicants were left to assist Mrs W with her financial affairs on an informal basis pending the outcome of the Guardianship application.

In light of this information, the application was amended to seek revocation of the existing Continuing Power of Attorney. The Bank opposed the application for revocation and a hearing was held at Glasgow Sheriff Court to determine the matter. Sheriff Baird held that, despite having been registered with the OPG, the Continuing Power of Attorney in favour of the Bank was not valid in accordance with the Adults with Incapacity (Scotland) Act 2000 ("the Act"). He noted there was:

• no express statement that Mrs W had intended the powers to be continuing powers
• no statement that Mrs W had considered how her incapacity was to be determined, as required by the Act

As such, there was no need to revoke the Power of Attorney and the Applicants were appointed as Mrs W's joint Financial Guardians. Given that the Continuing Power of Attorney was in the Bank's standard form, the decision raises questions about whether a large number of Powers of Attorney prepared in the Bank's standard form are in fact valid.

Interestingly, Sheriff Baird indicated that even if there had been a validly constituted Power of Attorney, he would have been persuaded to revoke it and appoint the Applicants as Mrs W's Financial Guardians as the Bank had not taken steps at any time to exercise their powers as Mrs W's Attorney. In the circumstances, he was prepared to treat the parties as being competing applicants and apply the criteria contained in the Act to both parties.

If you would like to discuss putting in place a properly constituted Power of Attorney or making an application for Guardianship, please contact us.