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Sheriff's 'bombshell' decision renders most Scottish powers of attorney invalid

Thursday, 5 June, 2014

Scottish solicitors are being warned to review the wording of all continuing powers of attorneys they have prepared.

Most CPAs in existence are based on a standard template published on the website of Scotland's Office of the Public Guardian (OPG). However, according to a recent decision of Glasgow Sheriff Court, this template does not comply with the relevant legislation, and thus any CPAs modelled on it are probably invalid.

The Glasgow decision came in a case in which the relatives of an elderly widow known as NW, who had recently lost capacity, applied to be her guardians. However, when their application was notified to the OPG, it discovered that Mrs NW had executed a CPA in 2008 naming Clydesdale Bank as attorney. The relatives then asked the Glasgow Sheriff Court to revoke this CPA.

Sheriff John Baird obliged, holding that the CPA – though registered with the OPG, and indeed drafted by the bank to be based on the OPG model – was not validly constituted. One of Baird's reasons for its invalidity applies also to the sample CPA appearing on the OPG website, and it thus appears that all powers of attorney prepared in this form are invalid.

The specific cause of invalidity is related to the wording of sections 15(3) and 16 of the Adults with Incapacity Act, which require that a valid power of attorney must contain certain statements by the granter expressing her intentions. In Baird's opinion (which might yet be appealed) the Clydesdale CPA, and the OPG model, did not contain these.

He concluded that all attempts to create CPAs following the OPG sample must have failed, implying that Scotland is full of people who think they have granted a valid power of attorney, but have not. More than 500,000 CPAs have now been registered under the Act and the OPG believes that most suffer from the same defect.

According to Adrian Ward, convener of the Law Society of Scotland's Mental Health and Disability Committee, Baird's decision can reasonably be described as a ‘bombshell’ for the profession. The Society is urging members to take action without delay. ‘This could have very serious implications for solicitors and some of their most vulnerable clients,’ said Coral Riddell, the Society's Head of Professional Practice. ‘We ... are advising solicitors to review any power of attorney documentation they hold and consider whether they should alter the wording’.

In guidance issued after the Baird judgment, Sandra McDonald of the OPG noted that the model CPA on its website has so far been sufficient to satisfy the OPG that the statutory requirement is met. ‘However, practitioners' attention is drawn to the divergent views on this matter, in order that they can determine if a more explicit reference is required,’ she said.

Sheriff Baird's decision is subject to appeal.

Sources