Private Client Update: The OPG's first court case

The Office of the Public Guardian is the body who regulates the orders granted under the Adults with Incapacity (Scotland) Act 2000. Among the orders that can be granted are powers of atorney. It is the solicitor's duty in such cases to assess whether the person wishing to grant the power of attorney retains capacity to do so and has to ensure the that person appreciates the nature and consequences of granting the power of attorney.

In the first ever case brought by the public guardian in relation to a power of attorney, the Public Guardian asked for the court's help to determine whether an application that she had received on behalf of a 87 year old women to revoke a previous power of attorney granted to a solicitor and issue a new one to the woman's friend, should be registered. The Public Guardian had received a letter from the woman's current attorney stating concerns over the suitability of the new attorney as the woman had advised her that she had been given her new attorney regular payments of money.

The sheriff found that the woman in question did not retain capacity and did not understand the impact of what she was instructing her solicitor to do and therefore instructed the Public Guardian not to register the revocation and new power of attorney. He also ruled that the solciitor that had signed the documentation in the first place should have made further checks on the reasons behind her instructions and her capacity to give those instructions. To read the judgement in full, please click here.

In the correct situation, powers of attorney can provide both the family members involved and the granter of the power of attorney with peace of mind that the granter's future welfare and/or finances shall be looked after by a person they can trust. It is however necessary that the solicitor advising the granter is fully satisfied that the granter underdstands what he/she is signing and has capapcity to give the solicitor the instructions. It is often the case that a medical opinion is sought by the solicior before the paperwork is signed off.

If you require more information about powers of attorney, please contact Denise Hooper.