Granting a Power of Attorney (PoA) has become another item on clients’ ‘must do’ list along with putting in place or regularly reviewing the provisions of a Will or asset protection measures and opportunities.
Denzil Lush, a retired judge who sat in the English Court of Protection, was reported recently as saying of the English system relating to powers of attorney, “people should be far more aware of the risks” and has vowed never to sign one himself.
Sandra McDonald, Public Guardian (Scotland) was quick to clarify the differences between how PoAs are managed North and South of the Border pointing out that in Scotland:-
- An assessment of capacity by a lawyer or doctor is required – a critical safeguard. That is not the case in England.
- The majority of PoAs in Scotland are drafted by solicitors on client instruction.
- The style of PoAs in Scotland is directive comprising a list of specific powers the result being that the extent of the authority of the attorney is explicit. In England all matters are deemed within the attorney’s authority unless specifically excluded.
Whilst the comments of Mr Lush do not translate into the Scottish context there is no doubt that any individual must seek legal advice before putting in place a power of attorney. This will ensure that the advice given is tailored to the circumstances of the client. This is often against a backdrop of challenging family circumstances with for example children with differing views on what is best for their mother and/or father. It is essential that the granter of the PoA has unquestionable confidence in the individual appointed as an attorney. If there is any doubt, guidance should be sought on what other practical safeguards can be put in place to ensure that financial interests are protected and promoted.
All solicitors in Scotland are members of the Law Society of Scotland, the professional governing body. Additionally a number of those practicing in the field of Wills, executries and powers of attorney will be members of the Society of Trust and Estate Practioners (“STEP”). STEP members, known as TEPs, are internationally recognised as experts in their field, with proven qualifications and experience. Both organisations have issued detailed guidance to their members on how to conduct meetings with those classed as vulnerable and how to ensure that power of attorney instructions are genuine. This guidance reinforces the rules of good practice that solicitors are taught during their formal legal education and traineeships and which are a central part of daily working life.
Turcan Connell has 20 TEPs and 7 student members, evidencing its commitment to the needs of its private clients including those who require advice relating to powers of attorney. If you have any queries or concerns regarding PoAs, please get in touch with your usual Turcan Connell contact.