At Turcan Connell we encourage all our clients, no matter what age, to have Powers of Attorney to ensure that their financial and welfare affairs are safeguarded and promoted in the event that they become temporarily or permanently incapacitated.
Earlier this year a judgement by Sheriff John A Baird, Sheriff of Glasgow and Strathkelvin called into question the validity of thousands of Powers of Attorney registered with the Office of the Public Guardian in Scotland.
The case dealt with an application under the Adults with Incapacity (Scotland) Act 2000 ("the Act") for the appointment as welfare and financial guardian of a niece and a cousin of an elderly widow suffering from Alzheimer's Disease. During the course of the application, it came to light that the elderly widow had granted a Continuing Power of Attorney in favour of the Clydesdale Bank plc registered with the Office of the Public Guardian in Scotland. The deed was in the Bank's standard form which was in the same terms as a"sample" which appeared on the Office of the Public Guardian's website. Sheriff Baird concluded that the Power of Attorney was invalid because it did not comply with certain provisions of the Act. Sheriff Baird's Judgement is not being appealed.
Sandra MacDonald, the Public Guardian, is seeking clarity on the issue by way of an application for a direction as provided for in terms of the Act from another Sheriff in Glasgow.
We can reassure our clients with Turcan Connell Continuing Powers of Attorney that these are valid in accordance with the requirements of the Adults with Incapacity (Scotland) Act 2000.
There is no guarantee that the Public Guardian's Application for a direction will provide the certainty that we seek and as a result many people who have granted Powers of Attorney which fail to meet the requirements as outlined in Sheriff Baird's judgement will have to consider whether or not to replace their existing Powers of Attorney.
If you have any doubts or concerns regarding the validity of your Continuing Power of Attorney in light of Sheriff Baird's judgement and in advance of the outcome of the Public Guardian's application for a direction please get in touch with your usual Turcan Connell contact or Kenneth Pinkerton who will be delighted to speak with you.