Retired Judge Denzil Lush made headlines this week when he warned that the public needs to be alerted to risks arising from a lack of safeguards in the Power of Attorney system.
Ernest Boath is Head of the Private Client Department at Miller Hendry, and advises clients on Wills, Powers of Attorney, Intervention and Guardianship Orders, Inheritance Planning and Executries. He has been appointed Guardian for a number of incapable adults. In addition, he administers a number of Private and Charitable Trusts.
He writes this open letter to Retired Judge Denzil Lush in response to his recent comments in the media:
I read with considerable alarm your recent comments in the press and radio on your concerns about powers of attorney in England and Wales and would like to draw your attention to how the Scottish legal system offers a robust example of how this useful document can be applied.
While I agree that it is important that when granting powers of attorney there must be complete trust in the person that is being appointed, the rare issues you cite – of difficulties arising where a Power of Attorney has been granted – should not put people off considering this very important measure when arranging their legal affairs.
It would be great shame if the enormous benefit that has been brought to families around Scotland by the granting of a power of attorney was to be halted as a result of your comments which are based on your experience of problems in the English and Welsh system.
Since the inception of continuing and welfare powers of attorney in Scotland, under the Adults with Incapacity (Scotland) Act 2000, it is possible for any adults to grant a formal document authorising person or persons (their attorney) to act on their behalf. They can act in the management of their property, finance and business affairs, and various aspects of their personal welfare, medical treatment and care. The attorney can only act within the powers contained in the deed. Typically powers of attorney are used when a person becomes so infirm or aged that they’re unable to handle their affairs on a daily basis. It could also be used on a temporary basis, say if a trip abroad is anticipated. This, I believe, is all very similar to the situation in England and Wales.
Similarly, in Scotland, the powers granted cannot be exercised by the attorney until it has been registered with the Office of the Public Guardian, a government agency set up in Scotland to maintain a public register of powers of attorney. The Office of the Public Guardian supervises those individuals who have been appointed to manage the financial and property affairs of adults who lack capacity to do so themselves, and investigate circumstances made known to them where the property or finances belonging to an incapable adult appear to be at risk.
However, where our systems differ is that in Scotland, in order for the power of attorney to be registered it must be accompanied by a certificate signed by either a solicitor or doctor stating that they have assessed your capacity to understand the nature and extent of the deed and its affect on your affairs. Specifically, it also requires the signatory to confirm that they have no reason to believe that the granter of the power of attorney was acting under undue influence or that any other factor affects or impairs the legal validity of the document.
The use of Powers of Attorney in Scotland frees up valuable court resources that would otherwise overburden the system and puts the power to decide on who should be responsible for the management of their own affairs back into the hands of the individual. Furthermore, it is a considerably less expensive route than Guardianship, the Scottish equivalent of court appointed deputies, and one which would not add extra cost burden to the taxpayer’s purse through increased Legal Aid costs which might be available to applicants.
Accordingly, while there is no doubt that on rare occasions a vulnerable adult could be taken in by a fraudulent family member or friend, there are safeguards in place. Having power of attorney does not give one the right to the subject’s assets. If an attorney helps themselves to the contents of a bank account that is still theft.
In the vast majority of cases the benefits of having a power of attorney in place to enable a trusted family member and loved one, very often a spouse, son or daughter, to look after your affairs if you became incapable of doing so yourself, far outweighs those risks.
Crucially a power of attorney is granted while you still have capacity to make that choice. A guardianship comes into play after you’ve lost that capability. Perhaps more importantly, a guardianship is initiated by the person seeking to become the Guardian. In other words, they ask the Court to be appointed as the person entitled to look after your affairs. With a power of attorney, it is entirely in your own hands who to appoint to look after your affairs in the event that you should become incapable of doing so in the future.
It seems to me and my fellow colleagues who work in this area of the law, far preferable that when you are able to consider the position carefully, discuss it with family members, and think through the implications, that you then appoint someone of your choosing to take on this important role. This is in preference to leaving it until such time as dementia, stroke or another medical crisis results in your incapacity, forcing a third party to seek to be appointed to look after your affairs through the, sometimes time-consuming court system and without any input from the affected person whatsoever.
Undoubtedly there is a risk that families might fall out about the best way to look after an incapable relative’s affairs, or that an unscrupulous and criminal individual might take advantage of the appointment to steal someone’s assets, the reality is that there is a such a risk in all aspects of life and in Scotland there are extra safeguards in place at the time of inception of the power of attorney.
Power of attorney granted in favour of someone you trust implicitly, remains a very useful and important part of an individual’s personal future planning which should always be considered. Where there has been a clear breach of that trust resulting in theft the perpetrator can be easily identified and brought to justice. The dreadful case of Mr Willett which has been cited, as I understand it, was set up under the older English & Welsh system and the procedure has since changed.
On a personal note, having suffered a stroke at the age of 33 I am now, more than ever, committed to ensuring that my clients affairs are protected before these powers are needed because if they wait until they are or they might be needed, it may just be too late.
Many people think Power of Attorney is just for older people. But it’s not, it’s for everyone. Things happen. Car accidents, strokes, dementia. And they happen to people of all ages. It’s a common misconception that your partner, or your parents, or your next of kin can just take over your affairs. They cannot. And the process for applying for guardianship is lengthy, costly and not easy. I would like to think that north of the border at least, clients can continue to grant powers of attorney and reap the considerable benefits without too much fear of the rare instances of abuse.