Style Continuing Power of Attorney

In a recent court decision 1 the Sheriff has questioned whether a commonly used style of deed of Continuing Power of Attorney in fact complies with the requirements of s15 of the Adults With Incapacity (Scotland) Act 20002. Perhaps a little embarassing for the Office of the Public Guardian, it is the style they themselves suggest on their website3

Now the decision is being appealed, so it may turn out that an appointment which simply reads “I, [name], residing at [address] appoint [name] residing at [address] to be my continuing Attorney (“my Attorney”) in terms of section 15 of the Adults with Incapacity (Scotland) Act 2000” is legally valid to appoint an Attorney with continuing powers. However, I am of the view that a deed should allow a non-lawyer to clearly understand the intended effect just be reading it, even if they are not able to tell every single legal implication. How many non-lawyers would know off the cuff what a “section 15 Power of Attorney” was?

With this in mind, if you are drafting such a deed for a client it might be useful to have a style which meets the Sheriff criticisms. So here is one:

I, [ClientName] residing at [ClientAddress] CONSIDERING that I desire to appoint a proper person to manage my affairs in the event of my becoming incapable DO HEREBY nominate and appoint [name] residing at [address]:
(A) To be my Continuing Attorney upon my becoming incapable4, to manage my whole financial affairs, and without prejudice to the foregoing generality, with the powers particularly specified within Schedule 1 of this deed.5

(B) To be my Welfare Attorney upon my becoming incapable, to make decisions in relation to my personal welfare generally, and without prejudice to the foregoing generality, with the powers particularly specified within Schedule 2 of this deed.6
DECLARING that in respect of exercise of powers under clause (A) and (B) aforesaid:

FIRST I declare that in the event that I become incapable, I intend this Deed to be a Deed of Continuing and Welfare Powers of Attorney and in such circumstances Sections 15(1) and 16(1) of the Adults with Incapacity (Scotland) Act 2000 will apply to these presents7. By incapacity I mean (a) any case where I myself declare that I am incapable or have restricted capacity and instruct that these presents become operational or (b) I am declared by a qualified medical practitioner to have impaired mental faculties or to be physically incapable of communicating.8

Bear in mind that this is intended to be a partial style for a qualified solicitor to use their skill and expertise to draw up a deed for a client taking account of the exact requirements for that client, not for a lazy cut and paste job9. Also it is a conditional deed, not one with immediate effect – but easily amended by deletion if you need to.

If you are a non-lawyer who is searching for wording for a DIY Deed of Power of Attorney, I don’t recommend it. There are several benefits to using a Solicitor to draw it up for you, not least being that you or your family have someone to sue if it is cocked up and someone needs to spend thousands on a Guardianship court application.

As a Solicitor, the main “added benefit” you are giving in drawing up a Continuing Power of Attorney is independent evidence of the adults state of mind before they became incapax. Completing the certificate at execution is not just a formality, and shouldn’t be the only verification you carry out that the person knows what they are doing.

If your client is coming to draw up a deed because they’ve just been diagnosed with a condition, I would strongly suggest that you send them to their doctor for the execution and certificate. An alternative would be to discuss matters with the doctor and specify them on the certificate, but some doctors won’t do so, some want to charge for it. Even with those who are willing the effort in arranging an time when you are both available can be a nightmare.

However in any case, the whole point of the certification process is in case a family member disputes the appointment in the deed once your client has become incapax. In say 8 years time, how much will you remember from a couple of file copy letters and your signature on a standard certificate? It is worth while having sections on your standard instruction sheet10 to note how you ascertained that the person was capax (or any doubt that arose), and person who attended any appointment, and why the client chose the person they chose as against any other family member. Having this noted down as standard will definitely help in the odd contested case – in fact if there is a challenge simply letting the appointed Attorney have copies of this from the file to pass on to the challenger may help them head off any further action against them.

For bonus points, it is worthwhile when chatting with the client asking how they came to the office, and if they were brought in by the person they are nominating as Attorney, you might want to explore a little deeper for undue influence.

Hope this helps!

1 Scot Courts AW39/14 [2014] SC GLA 1
2 s15 Adults with Incapacity (Scotland) Act
3 A quango not being entirely accurate on a point of law? Never!
4 Plain language declaration of what is intended per S.15(3)(b)
5 I like schedules for the powers, it’s easier to customise for the clients specific requirements, even if it does need a couple of extra signatures.
6 You could combine (A) and (B) into a single paragraph but I think there are a number of benefits in specifying them separately.
7 Specific reference to the legislation confirming intention per S.15(3)(b)
8 Clients definition of determining incapacity per S.15(3)(ba)
9 Come on, for the amount you’re charging you should at least make some effort.
10 You are using a standard instruction sheet aren’t you?

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