Last year, we explained how a decision from Glasgow Sheriff Court raised concerns that many Scottish Powers of Attorney could, in fact, be invalid. In that case, Sheriff Baird at Glasgow decided that a Power of Attorney granted in favour of a bank was not valid as the wording used in the document did not comply with the requirements of the Adults with Incapacity (Scotland) Act 2000.

The potential effect of this was wide reaching as the wording used in the Power of Attorney in question was standard and used by solicitors across the country.

However in a later case, a Sheriff at Forfar disagreed with Sheriff Baird's decision and held that a Power of Attorney drafted in virtually identical terms did meet the requirements of the 2000 Act and was therefore valid.

Although neither of these decisions were binding on other courts, they created significant uncertainty within the legal profession and caused concern for many Attorneys and families. It was no longer clear whether Powers of Attorney using the wording in question had any legal effect and whether Attorneys could continue to act on behalf of their families and friends.

In December 2014, an Attorney and the Public Guardian, Sandra McDonald, brought a special case before the Inner House of the Court of Session to clarify whether such Powers of Attorney are valid. After consideration, the Court decided that the standard wording used in the Powers of Attorney in question did meet the requirements of the 2000 Act and was therefore valid. This decision is binding on all Scottish courts and both the legal profession and families will be relieved to know that Powers of Attorney in the standard wording remain effective. If you are interested in the reasoning behind this decision, the full decision of the Inner House can be accessed here.

These cases highlight the important of taking specialist legal advice in granting Scottish Powers of Attorney in order to ensure this is legally valid. At TC Young, we have a team of solicitors specialising in this area and would be happy to assist. If you would like to discuss putting in place a Power of Attorney or making an application for Guardianship, please contact us.

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