A recent item on BBC Radio 2, reporting the views of a leading, recently retired, Senior Judge from the Court of Protection in England and Wales, indicated he was concerned that powers of attorney were open to abuse. This has raised significant enquires to the Office of the Public Guardian in Scotland.
There are fundamental differences between the way powers of attorney (PoA) are managed North and South of the Border. To consider this in a Scottish context, and the safeguards which exist within the Scottish system, it is worth clarifying that:-
- An assessment of capacity is required; a lawyer or doctor has to testify that the person is aware of what a PoA is, what powers (authority) the person is granting, to whom and, that they are under no pressure to so act. This capacity assessment is a critical safeguard.
- The majority of PoAs in Scotland are drafted by solicitors on client instruction. This follows a detailed, and private, discussion between solicitor and granter. This legal involvement offers a significant protection.
- The style of PoAs in Scotland is directive ie powers are specific; the extent of the authority of the attorney is explicit.
There are other safeguards that are similar within the two systems:
- The Public Guardian maintains a central register of orders
- The Public Guardian is able to remit to court any matters of concern
- The OPG is able to receive reports and can inquire into the financial affairs of an incapable person where these affairs appear to be at risk
Other factors which are relevant are:
- There is a Code of Practice which assists attorneys in their role
- There are statutory principles which an attorney is obliged to respect
- The Law Society of Scotland has comprehensive guidance on assessing capacity and taking instruction from this client group
Sandra McDonald
Public Guardian (Scotland), 16 August 2017