A retired senior judge in England issued a warning yesterday over the risks of granting a power of attorney via an article on the BBC news website and on BBC Radio 2.
Our advice to anyone holding a Power of Attorney in Scotland, or considering granting one. Don't panic!
The Scottish system of granting a Power of Attorney differs from England.
Most Powers of Attorney in Scotland are drafted by solicitors following specific instructions from their client, offering an additional level of protection. Solicitors in Scotland follow guidance set by the Law Society on assessing capacity and taking instructions from vulnerable clients.
The Public Guardian's Office (both in Scotland and England) maintain a central register of Attorneys. They have power to investigate concerns and take steps to safeguard financial matters where it appears the granter of a Power of Attorney is at risk.
In Scotland, additional safeguards are in place namely:
- In Scotland a Solicitor or Doctor must sign a certificate at the time of a Power of Attorney being granted. The certificate is a statement by the Solicitor or Doctor confirming that they are of the opinion that the granter of the Power of Attorney had capacity to grant the Power of Attorney, understood the nature of the document and does not believe the granter was unduly influenced. In England there is no assessment of capacity
- In Scotland, the powers granted to an Attorney and degree of authority are specific. This means if the Power of Attorney does not have a specific power listed then the Attorney has no authority to act in that specific matter. In England powers are not expressly granted. This means that the Attorney has authority to deal with all welfare and/or financial matters unless the Attorney has made a statement excluding specific matters which should be excluded from the Attorney's authority.
If you have concerns about the welfare of a vulnerable adult, the local authority for the area in which the granter resides and the Mental Welfare Commission have equivalent investigative powers in relation to concerns about the personal welfare of an adult being at risk.
If you have any concerns on a Power of Attorney already in place or you are contemplating granting, please get in touch with our experienced team.
