CONTINUING POWERS OF ATTORNEY IN SCOTLAND – 1 YEAR ON

Scott Rae sets out the Scottish provisions for Continuing Powers of Attorney which may be the model for future reform in England and Wales
(taken from Issue No 19  – April 2002

 

The provisions of the Adults with Incapacity (Scotland) Act 2000 (`the 2000 Act`) relating to Continuing Powers of Attorney and Welfare Powers of Attorney in Scotland came into force on 2 April 2001 and this Article will look at some of the practicalities which have come to light during the first year.

Introduction
Firstly, however, it may be appropriate to consider some general background on this new Act which was one of the first substantive pieces of legislation by the new Scottish Parliament after devolution. The Act makes a number of provisions for `adults` in Scotland who are `incapable`. Adults in Scotland mean those over 16, and `incapable` in the Act is defined in s.1(6) as meaning incapable of

`(a) acting; or
(b) making decisions; or
(c) communicating decisions; or
(d) understanding decisions; or
(e) retaining the memory of decisions……by reason of mental disorder or of inability to communicate because of physical disability`.

The incapacity must be a mental rather than a physical one except where the physical incapacity results in an inability to communicate. However, the inability to communicate test is not met where the `lack of or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise)`. It is apparent, from the above definition of incapacity, that the statute recognises there are varying degrees, causes, and consequences of incapacity compared with the position not so long ago when the law attempted to operate a fairly narrow test of whether persons were capable or incapable, sane or insane. Scots Law now appears to look for a balance between the autonomy of the individual and protection of their situation, with issues of capacity increasingly recognised as being specific to a particular individual and the particular transaction in hand e.g. someone may have the capacity to appoint an Attorney, but not to manage every detail of their own financial affairs.

General principles for intervention
This change in approach was embodied statutorily in the 2000 Act which provides some general principles in ss.1(2) – (4) which are superimposed on the whole Act, by providing:-

  • Firstly, that there should be no intervention in the affairs of an adult unless the intervention will benefit the adult and such benefit cannot reasonably be otherwise achieved;
  • secondly, any intervention in an adult’s affairs must be the least restrictive option; and,
  • thirdly, in determining what (if any) intervention is appropriate to be taken of the past and present views of the adult concerned so far as ascertainable, and after consultation with the nearest relatives or primary carers or other appropriate advice.

 In considering Continuing Powers of Attorney in Scotland, the relevance of these over arching general provisions, therefore, will be seen to have practical implications.

Two new types of Power
Turning now, therefore, to the Powers of Attorney provisions contained in Part 2 of the 2000 Act, we see that the 2000 Act deals specifically with 2 classes of Power of Attorney, the `Continuing` Power of Attorney, and the `Welfare` Power of Attorney. The Continuing Power of Attorney relates to the property or financial affairs of an individual which is intended to `continue to have effect in the event of the granter’s becoming incapable in relation to decisions about the matter to which the power of attorney relates`
1. A Welfare Power of Attorney is one relating to the individual’s `personal welfare`2, but not his or her financial affairs, and covers the situation where the Attorney is appointed primarily to give or refuse consent to medical treatment or medical research, but there are some statutory limitations in that the welfare Attorney may not place the granter in hospital for the treatment of mental disorder against his will or consent to certain forms of more intrusive mental disorder treatment.

So far in the writer’s experience there has been less demand for, or usage of, the Welfare Power of Attorney, possibly because it is a new concept in Scotland but it is likely, as professionals, both in the legal and related fields such as the social work and medical professions, become more familiar with it that its use will increase. This article, however, concentrates on the Continuing Power of Attorney which deals with the individual’s financial affairs, rather than the Welfare Power of Attorney. Suffice it to say, however, that the Welfare Power of Attorney has a similar format in respect of its formal requirements, incorporating a similar Certificate as is mentioned below in relation to the Continuing Powers, and should be distinguishable from the Continuing Power of Attorney as there is a statutory requirement to incorporate a statement clearly expressing that `the power be a welfare power` to which s.16 of the 2000 Act applies. Like the continuing Power of Attorney for property or financial matters, the Welfare Power will only become exercisable when the granter becomes incapable in relation to decisions about the matter to which the Welfare Power relates. There will be cases, however, where there is a single document appointing an Attorney for both Continuing and Welfare reasons, so an awareness, at least, of the differences may be useful.

The Continuing Power of Attorney:
Looking specifically at the practicalities of dealing with Continuing Powers of Attorney in Scotland now, these can be broken down into the following:-

1

The pre-April 2001 position and overlap:

The 2000 Act only applies to Powers of Attorney executed on or after 2nd April 2001. Before that in Scotland it was in fact possible to have a continuing Power of Attorney under previous legislation3, but the main difference between the pre and post April 2001 position is that old Powers of Attorney granted prior to that date, whether or not they had any specific provision that they would have a continuing effect, were, if granted post the 1990 Act4, deemed to have continuing or enduring effect despite subsequent mental incapacity from the mere fact that they were granted in that period. The previous rules are reflected in the 2000 Act which provides5that an Attorney appointed under a pre-existing Power of Attorney `shall become a continuing Attorney` under the 2000 Act whether he was already acting or not. Accordingly, in looking at the validity of a Power of Attorney in Scotland there will, for some time, be a need to be aware of this two tier situation, i.e. the new post 2 April 2001 power in its particular form which makes it clear it is to have continuing effect in the event of the granter’s incapacity; and the previous pre-2001 model which will be deemed to have such effect even although it makes no reference whatsoever to continuing or enduring intent.

2

The form of the post-2001 Continuing Power of Attorney – the Certificate:

The 2000 Act provides that a Continuing Power of Attorney shall be valid only if in a particular form.6

  • It has to be in a written document. This will normally be one which is witnessed by one witness so that it is a self-proving document.
  • It will require to incorporate a clear statement that it is the granter’s intention that it be a continuing power.
  • It will have to incorporate a Certificate in a particular statutory form by a Solicitor (or practising Advocate or Registered Medical Practitioner)7, that he has personally interviewed the granter immediately before he or she signed the document, that he is satisfied, either because of his own knowledge of the granter or because he has consulted other persons (who have to be named in the Certificate) who have knowledge of the granter that at the time of granting the Power of Attorney the granter understood its nature and extent, and that he has no reason to believe that the granter is acting under undue influence or any other factor vitiating the granting of the Continuing Power of Attorney.

Initially there was some discussion about what the provision for `incorporating` the Certificate in the Power of Attorney would mean, but this has settled down pretty well in practice to having it annexed on a separate page bound up or stapled to the Power of Attorney as an additional last page.

In addition to the Act and the relative Statutory Instruments, the Scottish Executive has issued a `Guidance Note for Signatories`8. The Guidance Note indicates that the granter should be interviewed personally immediately before the Continuing Power of Attorney is signed and this interview should be conducted face to face and not by telephone or other remote means. Consistent with the general principles of the 2000 Act noted above, the Note adds that `it is essential to distinguish lack of capacity from lack of ability to communicate` and that inability to communicate only counts as incapacity if it cannot be made good by human or mechanical means so that if the granter can use interpreters, signers, computer technology or other communication aids these may be employed to satisfy the Act’s requirements.

3

Practical issues with the Certificate:
The 2000 Act provides that the Solicitor or other person signing the statutory Certificate cannot be the person to whom the Power of Attorney is granted,
9 but a partner from the same Solicitor firm may sign the Certificate which overcomes some of the practical difficulties. The person granting the Certificate can also be the witness to the Power of Attorney document itself provided he or she is not to be the Attorney. The practicalities of getting the document properly signed and the Certificate properly completed have, therefore, changed previous practice in many cases. It is clearly no longer possible simply to take instructions by phone (if it ever was) even from an established client and to send a Power of Attorney to someone to sign. There must be a personal interview with the granter, which may often involve a home visit particularly with an elderly client, and the problem of ensuring that there will be an independent witness available when the Solicitor to whom the Power of Attorney is to be granted is visiting the granter at home is not uncommon in such cases. Apart from trying to ensure that there is available an independent witness and/or a signatory to the statutory Certificate, another practical issue which has arisen has been to ensure that where the Certificate is not being granted by the Solicitor or within his firm, but by the granter’s own Doctor, that the statutory requirements are observed as the interview with the granter by the person granting Certificate must be `immediately before` the signing of the Power of Attorney. In some cases the Certificate has been signed certifying that the interview has taken place after the Power of Attorney itself has been signed, which will not satisfy the statutory requirements, and the relative dates of each are therefore something that should be checked in looking at the validity of any Continuing Power of Attorney. Again, another practical difficulty for Bank Trustee Departments may be the requirement that they will now have to involve a Solicitor or the client’s Doctor in the process of getting the Certificate for the Continuing Power signed.

4

No statutory form (apart from the Certificate):
Consistent with the established approach to Powers of Attorney in Scotland there is, however, no model or style Power of Attorney in the Act unlike the English model where there tends to be a short statutory reference and no detailed list of specific powers. Scottish Powers of Attorney have tended to have and will still have very specific listings of the powers conferred on the Attorney. There will often be a general introductory power and then a list of specific powers, such as to sell property or operate Bank Accounts or the like, and although the 2000 Act, as indicated above, has requirements about the Certificate, it does not provide any statutory form for the Power of Attorney itself and the traditional Scottish approach continues. In Scotland therefore the granter must have an adequate understanding of all the detailed powers to be granted in the deed and so the question of capacity and in turn the Certificate must address that. This means, also, that it is necessary, when presented with a Scottish Power of Attorney, not only to check the Power of Attorney for the statutory requirements and Certificate noted above, but also to confirm that the specific act for which the Power of Attorney is being produced is authorised within its terms.

5

No requirement for medical evidence at time of granting:
Even in the case of a Continuing Power of Attorney (and even a Welfare Power) there is no requirement for medical involvement or opinion as to capacity at the time of granting even although the person signing the Certificate will often indicate that he has consulted others in arriving at the conclusion of capacity which is implicit in the Certificate, and must name those who were consulted. There is a view emerging that, in most cases, the person to be consulted, if the certifying Solicitor feels unable to, will be the patient’s own Doctor, or with elderly patients sometimes a specialist geriatrician who is involved in their case, but there is still no statutory requirement for medical advice at that time. This again is consistent with the above mentioned general principles of the 2000 Act which in effect starts with the presumption that all adults have capacity, but it clearly puts quite an onus on the person granting the Certificate, particularly in cases where there may be some doubt as to an elderly person’s capacity and this is one of the more practical aspects which has arisen in a more focused manner since the requirement of the Certificate was introduced. There is, of course, nothing particularly new about this, in as much as there has always been a general professional duty (as well as under the Law Society of Scotland’s 1989 Code of Conduct for Scottish Solicitors) to ensure that proper instructions are taken, but the question is certainly more focused now.

6

Is a Continuing Power of Attorney enough in practice?:
Because of the additional formalities required when granting a Continuing Power of Attorney with the related certificate, and also because of the further formalities noted below relating to Registration, a practice has emerged, in many cases, of having two Powers of Attorney signed, the one being the Continuing Power of Attorney to be activated and used when the granter’s capacity fails, and the other being for more specific circumstances, such as perhaps temporary illness or absence or physical inability to sign, but where mental capacity is not in doubt, and where the formality of the Certificate is not required. This, therefore, means that anyone looking at Scottish Powers of Attorney may well be faced with not only the old pre-2001 Power of Attorney, but also with a post-2001 one which does not refer to the 2000 Act or have any statutory Certificate, but which will be entirely valid so long as the granter has capacity and the Power has not otherwise been revoked.

7

Further formalities – Registration:
s.19 of the 2000 Act provides that a Continuing Attorney shall have no authority to act until the document conferring the Power of Attorney has been registered with the Public Guardian who is a new public official in Scotland created by the 2000 Act. The appropriate registration form is available from the office of the Public Guardian
10. The 15 page document then requires to be completed and seeks more information than might be expected e.g. information about the granter of the Power of Attorney includes not only full name and address, but also date of birth, telephone number, e-mail address and ethnic origin of the granter. Information about the Attorney requires, in addition to full name, contact details etc, to indicate the relationship to the granter (whether relative, professional or friend/other) and the form requires also to be signed by the Attorney (or Attorneys in the case of a joint appointment) to confirm willingness to act as Attorney. There is also provision for details of persons to whom a copy of the Power of Attorney should be sent once it has been registered, but that, in practice, appears to be unusual and seems only to be a requirement if the Power of Attorney itself requires a copy to be sent to up to two specified persons. This in practice is not something which appears yet to be happening and was not the practice in Scotland previously in the standard form of Power of Attorney, but practice could change because of the existence of this provision.

Once the Power of Attorney is submitted for registration the Public Guardian will record it and then send a copy of it with a Certificate of Registration to the sender (who will often be a Solicitor, but might be the Attorney himself) and if it contains a Welfare Power of Attorney (which can be incorporated in the same document as a continuing Power of Attorney) the Public Guardian will also send a copy of it to the Mental Welfare Commission.

It is perhaps appropriate to note that the copy which is officially authenticated by the Public Guardian is to be treated, for all purposes, as sufficient evidence of the contents of the original and therefore, in all cases, what will be exhibited will be such a copy or perhaps even a certified copy of that document duly certified by a Solicitor, as the Public Guardian retains the original document at registration.

It can be seen, therefore, that a whole new regime of formality has been introduced by the 2000 Act since in Scotland previously there was no requirement that a Power of Attorney be registered with anyone, although frequently it was voluntarily registered in the Register of Deeds (the Books of Council and Session) as a protection against the original being lost at any time since official copies from that register are statutorily equivalent to the original. Extract copies bearing to be from the Books of Council and Session may still therefore be exhibited in the case of pre-2001 Powers of Attorney and will be encountered for some time as well as the new form authenticated by the Public Guardian.

8

Additional expense:
It will be seen that the additional formalities, including the additional Certificate, the need to interview the granter personally not only to take instructions, but also at the time of signing, and the additional Registration form etc have inevitably led to more work and consequently more expense than previously for the creation of a Continuing Power of Attorney. Additionally the Public Guardian makes a charge on registration at the current rate of £35
11 and also charges for additional copies and so on, with the result that the total cost is likely to be considerably more than the pre-2000 Act position.

9

Ongoing formality after appointment of the Attorney:
s.21 of the 2000 Act provides that a Continuing Attorney is required to keep records of the exercise of his powers, which is something that was advisable or good practice, but certainly not required previously. Similarly, after the registration of the Power of Attorney the Attorney is required to notify the Public Guardian of any change in his address, any change in the address of the granter, of the death of the granter or any other event which results in the termination of the Power of Attorney, and, if the Attorney dies, his personal representatives are obliged, if they are aware of the existence of the Power of Attorney, to notify the Public Guardian, who in turn will require to notify the granter and, if a Welfare Attorney is also involved, the Mental Welfare Commission and the Local Authority in appropriate cases. Similarly, where an Attorney wishes to resign, he or she requires to give written notice of the intention to do so to the granter, the Public Guardian, any guardian or primary carer of the granter and the Local Authority if they are supervising a Welfare Attorney, and the resignation is not effective until the expiry of 28 days from date of receipt of the notice by the Public Guardian.

Additionally another innovation introduced by s.24 of the 2000 Act is that if the granter and the Attorney are married to each other, the Power of Attorney ends automatically on the granting of a Decree of Separation or Divorce or declarator of nullity of the marriage, or if there is a formal appointment of a guardian, under other provisions of the 2000 Act which provide for a Court appointed guardian to look after the affairs of the incapax12. This might seem to create difficulties for any institution being asked to give effect to a Power of Attorney which is exhibited to them, but fortunately the Act provides13 that any person acting in good faith and in ignorance of the coming to an end of the Power of Attorney shall not incur any liability, nor shall any heritable (real) property title be challengeable on that ground alone. It may, however, be good practice and prudent to request confirmation that any Power of Attorney which is being exhibited is still in force and has not been terminated on any ground whatsoever.

10

Supervision of the Attorney:
Although the Attorney, as indicated above, requires to keep a record of their actings, which in practice probably also means keeping accounts in a relatively full fashion, there is no automatic procedure or requirement for these to be exhibited to the Public Guardian or anyone else for audit or checking or the like. There is, however, provision in the 2000 Act for the investigation of `complaints` which may lead to supervision or other action by the Sheriff Court and the Public Guardian. The complaints procedure provides that if someone is concerned about the actings of an Attorney who is looking after the affairs of an adult incapax, a complaint can be made to the Public Guardian. Such complaint must be in writing setting out the reasons for the complaint and on receipt the Public Guardian will investigate and determine what action, if any, is to be taken. In extreme cases the Public Guardian can make an application to the Sheriff Court seeking an order that the continuing Attorney shall be subject to the supervision of the Public Guardian or requiring the Attorney to submit Accounts to the Public Guardian or that any of the powers of the continuing Attorney be revoked. Accordingly, in such cases where the Sheriff Court so instructs, the Public Guardian will have an obligation to both supervise and investigate the continuing Attorney and audit any accounts which are submitted. Otherwise, apart from the registration requirements, there is no ongoing external check on the Attorney’s actings.

11

Record of Attorney’s Actings:
On the other hand the Attorney must keep a record of the exercise of his powers
14 which means that in practice most lay Attorneys will use the services of a Solicitor, Accountant or Bank Trustee Department to assist them with the appropriate record keeping particularly in the more complicated or larger financial cases which, again, may lead to more formality and expense in an ongoing situation as compared with previously, since, although the prudent Attorney would probably always keep records, the possibility of a more detailed audit is always to be kept in mind under the new provisions.

Conclusion:
In summary, therefore, the whole concept of the Continuing Power of Attorney has been formalised to an extent not previously known in Scotland, with increased procedures and costs.   With pre-2000 Act Powers of Attorney still capable of having continuing effect where the granter is incapax despite not following the new statutory form, and the two tier system of Powers post the 2000 Act which has emerged in practice, those who are faced with the production of a Scottish Power of Attorney may need to be aware of these various issues and complications.

Further information:
The Office of the Public Guardian, which is part of the Scottish Courts Service, has published a number of booklets and anyone seeking further information might find it useful to have a copy of the booklets entitled `Powers of Attorney Registration Form` and the `Guidance Note for Registration of Powers of Attorney`. These leaflets are available free of charge and are published in Braille, audiotape, large print format, Urdu, Punjabi, Bengali, Arabic, Chinese, and even Gaelic.

Sidney Ross,
Barrister
11 Stone Buildings
Lincoln’s Inn

1 s.15(1)
2 s.16
3 Law Reform (Misc Provs)(Scotland) Act 1990, s.71
4 Commencement date of previous rules
5 Schedule 4, para 4
6 s.15(3)
7 See the Adults with Incapacity (Certificates in relation to Powers of Attorney (Scotland) Regulations 2001)
8 Which can be found on the Scottish Executive Website: www.scotland.gov.uk/justice/incapacity/AWI/guidance_note.asp
9 s.15(4)
10 Hadrian House, Callendar Business Park, Callendar Road, Falkirk, FK1 1XR, telephone 01324 678300, fax 01324 678301, and e-mail opg@scotcourts.gov.uk, and there is also a copy of the form on the Public Guardian’s website (www.scotcourts.gov.uk
11 see the Adults with Incapacity (Public Guardian’s Fees) (Scotland) Regulations 2001)
12 Part 6 of the Act which deals with guardianship orders and intervention orders has only come in to force on 1 April 2002
13 s.24(4)
14 s.21