In May of last year, an opinion was issued by Sheriff Baird that cast doubt on the validity of thousands of power of attorney documents across Scotland.
Sheriff Baird ruled in the case Application for guardianship in respect of W (13 May 2014) that the continuing power of attorney in question in that case, did not meet the requirements of the Adults with Incapacity (Scotland) Act 2000 and was therefore invalid as a continuing power of attorney and could not be used during any periods of the adult’s incapacity.
The main concern about Sheriff Baird’s ruling was that the power of attorney in that case was based on the style power of attorney displayed on the website of the Office of the Public Guardian and is therefore a widely used style. This meant that, following Sheriff Baird’s decision, thousands of powers of attorney based on the style document may also have been invalid, which could have had serious implications for those who have used the deeds. If the person granting the power of attorney still had capacity, a new power of attorney document might have to be created. However, if the person who had granted the deed had since lost capacity, in order to be able to take control of their affairs it might have been necessary for the intended attorney to lodge a court application for guardianship. Both of these routes would have incurred extra time and costs to those involved.
Furthermore, this decision would have meant that decisions made under powers of attorney could have been challenged in the courts if the power of attorney document was later found to be invalid.
Practitioners, clients and the Public Guardian herself were eager to gain clarity in this area and a Special Case was therefore lodged at the Inner House of the Court of Session. The parties to the case were the Public Guardian and an attorney who was acting under a continuing power of attorney similar to the deed in the Sheriff Baird case. The case was dealt with as a matter of urgency on 11 December due to the effects of the ruling on the general public.
The wording in the Special Case, which was substantially the same as that in the Sheriff Baird case, was as follows:
“I, [name], residing at [address] appoint [attorney] to be my continuing attorney in terms of section 15 of the Adults with Incapacity (Scotland) Act 2000”.
The court had to determine whether this met the requirements of section 15(3)(b) of the 2000 act which requires a continuing power of attorney to include a statement that “clearly expresses the intention of the granter that the power be a continuing power”.
The judges determined that the wording of the continuing power of attorney being looked at in this case was in fact adequate to meet the requirements of the Act and was therefore valid. In the opinion of court, Lord Drummond Young stated that “no particular significance is to be attached to the precise wording used, as long as the intention is sufficiently clear. Thus, while the intention to create a continuing power of attorney must be expressly declared, all that is required is wording that in substance demonstrates that intention with sufficient clarity. On the foregoing basis we are of opinion that the power of attorney granted in favour of the first party is unquestionably a valid continuing power of attorney for the purposes of section 15.”
This judgement should provide reassurance to the thousands of people in Scotland who have granted continuing powers of attorney in a similar form that their powers of attorney satisfy the requirements of the 2000 Act.
The opinion of court in the Special Case can be found here.
