Professional practice updates 2013
Professional practice updates July 2013
Updated guidance on Continuing and Welfare Powers of Attorney will apply from 1 August 2013. The guidance applies whenever a solicitor is consulted or instructed with a view to preparing and/or certifying a continuing or welfare Power of Attorney under the Adults with Incapacity (Scotland) Act 2000.
This guidance should be read in conjunction with, and subject to, the Society's vulnerable clients guidance. Both this guidance and the vulnerable clients guidance have been issued following publication of a report by the Mental Welfare Commission for Scotland ("MWC") on "An investigation into the response by statutory services and professionals to concerns raised in respect of Mr and Mrs D" (published 13 February 2012) ("the D Report"). The D Report can be accessed here
New guidance on how best to safeguard the interests of vulnerable clients will be issued by the Society on 1 August 2013. This guidance will be important to those working in the mental health and disability area, and any solicitor who may come into contact with vulnerable clients in their day to day work.
A new guide to assist members with complying with the Equality Act 2010 when providing services to disabled people is being published by the Society on 1 August 2013.
Advice is also provided for solicitors and firms who wish to operate best practice and thereby exceed the requirements of the law. The guide has been produced by Capability Scotland on behalf of the Society.
The CML has confirmed that the following additions to the CML Handbook will come into force on 8 July 2013:
5.14 Energy Technologies Installed on Residential Properties
5.14.1 Check part 2 to see whether we require you to disclose the details of any existing Green Deal Plan(s) on a property
5.14.1a Does the lender require you to disclose the details of any existing Green Deal Plan(s) on a property?
All practitioners acting for a member of the CML will now need to check whether the property is affected by any Green Deal Plans and check that lender's requirements for disclosure.
Practitioners may wish to consider adding this question to any property questionnaires they use and ensure that the existence of any technologies is commented on by surveyors.
The Society's Professional Practice team has received a number of calls from members who have received panel renewal letters from Nationwide and who are concerned at the extent of disclosure required about their firm's financial arrangements, amongst other matters.
Whilst it will ultimately be a decision for every solicitor as to whether they wish to provide the information requested, it is hoped that the following statement obtained by the Society from Nationwide will be of some assistance.
"Nationwide continues to operate a large and diverse panel of over 4,000 firms across the UK. In order to oversee the panel effectively we require all panel firms to provide us with standard information and for that information to be maintained and updated. We are currently undertaking our annual UK-wide update which firms can undertake through our web portal.
"This process includes requesting updated financial information on firms. This data has already been provided in the past. We do however require the latest details to ensure our records to not get out of date.
"Nationwide uses this information to build a more informed picture of a firm's activities than we can get solely from our own interactions with that firm. Nationwide understands the confidentiality of the information provided. Information is only used for assessment of firms, on a case by case basis, for the purpose of panel membership. For clarity, Nationwide does not have a limit to panel size nor does it use the data to select between firms. Nationwide does not use the data in any other way (for example to seek to sell banking services or similar to firms).
"Nationwide is happy to deal with any individual questions from LSS members or firms on any specific points however we hope that this statement will comfort firms that the collection of this data is for the general benefit of the all parties."
Members with queries can contact Kaira Massie, solicitor in the Professional Practice team at Kairamassie@lawsco.org.uk or 0131 226 8894.
The Law Society of Scotland is advising solicitors to check their panel status with lenders before accepting client instructions to act.
A number of mortgage lenders remove solicitors from their panels without prior notice as part of their panel management system, which can lead to some solicitors discovering this only once instructed.
In a letter to the Society Property Law Committee, Yorkshire Building Society confirmed that it carries out periodic reviews and removed all firms that have not acted for the lender for at least 12 months to ensure that it did not retain firms which were no longer trading or had become dormant for other reasons.
While the lender would not write to inform firms of their removal, they are invited re-apply to join the panel at any time, although success would depend on satisfactory answers to all questions on the application form and submission of required documentation.