Professional practice updates 2014

Professional practice updates July 2014

Powers of Attorney and Sheriff Baird's Opinion - Update

1. Current situation:- Sheriff Baird issued an Opinion in a case involving Clydesdale Bank to the effect that certain wording which followed a style provided by the Office of Public Guardian was not sufficient to constitute a valid continuing Power of Attorney and therefore such a Power of Attorney was invalid. Numerous other Powers of Attorney use the same style as the one which Sheriff Baird considers to be invalid.

2. The Office of Public Guardian (OPG) have issued a statement to us as follows:-

The Public Guardian has been made aware that the Clydesdale Bank has decided not to pursue its appeal against the decision of the Sheriff at Glasgow. The Public Guardian is conscious that the decision raised a number of issues, including that of the validity of the power of attorney in question. The Public Guardian is in the course of making an application to Glasgow Sheriff Court under s.3 of the Adults with Incapacity (Scotland) Act 2000 in order to obtain directions from the Sheriff on a number of those issues. The Public Guardian does not expect to comment further while that application is pending.

3. The procedure to be followed by the OPG should give an opportunity for PoA validity issues to be fully explored.

4. Meantime, it is noted that Sheriff Baird is a Sheriff at first instance and that his Opinion is not binding authority on other Sheriffs.

5. Further updates will be issued as soon as the information becomes available.

6. Sheriff Baird's Opinion can be accessed from this link:- http://www.scotcourts.gov.uk/search-judgments/judgment?id=3d4d88a6-8980-69d2-b500-ff0000d74aa7

Lender Exchange Update - Final Terms and Conditions

Since the last lender exchange update issued on 3 July 2014, the Society has been advised by Decision First that the new conveyancing panel management system Lender Exchange, which is being facilitated by Decision First, will be launched on 4 August 2014. In the interests of openness and transparency, we attach a copy of the final Terms and Conditions we have received from Decision First and which were previously provided to us on a strictly confidential basis. We would draw members' attention to the legal advice which the Society obtained on the previous version of the draft Terms and Conditions which was published on 21 May 2014 and in particular the new amendments to the confidentiality and termination provisions. We would also remind members that by accepting the Terms and Conditions firms are bound by them and any applicable lender specific terms and conditions.

Cyber Security Checklist

Stay safe online, on the phone and face to face

Following recent cyber attacks against Scottish firms the Technology Sub Committee has prepared the undernoted checklist which solicitors should consider.

Online

• Never give banking or personal details to anyone you don't know or trust. This information is valuable, so make sure you protect it

• Always log onto a website directly rather than clicking on links in an email

• Ensure your anti-virus, malware and firewall protection is up to date on all devices, from servers and PCs to tablets and smartphones

On the phone

• Always ask for the name of the individual you're speaking to and who they represent. Verify their identity with the company's head office on a different phone

• Never give out personal, credit or online account details over the phone unless you made the call and the phone number is from a trusted source

• It's advisable not to respond to text messages or numbers you don't recognise - they may be charging you at higher rates and receiving calls may be very expensive

Face-to-face

• Always ask for identification and remember you don't have to let them into your premises and they must leave if you tell them to

What to do if you have been scammed

• If you spot a scam or have been scammed, report it and get help. Contact Action Fraud on 0300 123 2040 or online. Contact the police if the suspect is known or still in the area.

Useful links, guidance and further information

Guide to banking online - Bank Safe Online provides advice and tips on using online banking securely and with confidence

Get Safe Online - Free expert advice, providing practical advice on how to protect yourself, your equipment and business against fraud, identify theft and the like

Microsoft Safety & Security Centre - Software Operating system Supplier providing targeted advice to Microsoft users

Action Fraud - UK National Fraud crime reporting centre

Update on Power of Attorney - Decision by Sheriff Baird

In the wake of legal opinion from Sheriff Baird, Sheriff of Glasgow and Strathkelvin who determined that the power of attorney considered by him was invalid , the Law Society of Scotland is advising solicitors to review the wording of powers of attorney document. Sheriff Baird found that the style of the power of attorney document used by the Clydesdale Bank in a particular case was not in accordance with section 15 of the Adults with Incapacity (Scotland) Act 2000.The power of attorney document used by the bank was in the style of those available on the Office of Public Guardian website and widely used.

We are aware that the Sheriff's decision is under appeal and will continue to keep members updated as we receive further information. In the meantime we are advising solicitors to review any power of attorney documentation they hold and consider whether they should alter the wording. In that connection we note that the Office of Public Guardian have placed additional News on their website to the effect:-

"19 June 2014 PoA additional wording

Following a recent opinion expressed by Sheriff Baird on the style PoA on our website, which is similar in its terms to that used by many Firms, our samples now contain additional wording. This clarifies, for the avoidance of doubt, that what was intended by the granter was the creation of a continuing power of attorney, notwithstanding the direct reference to section 15 which of itself creates a continuing power of attorney and notwithstanding the recall provision i.e. that the power of attorney remains in force until recalled in writing by the granter or otherwise until their death.".

The Society notes that the continuing power of attorney samples on the OPG website now include the words:-

"I declare that I intend that this power of attorney shall be a continuing one which shall continue to have effect even if I shall have lost capacity in relation to the matters in this deed.".

Members may wish to further peruse the new samples available on the OPG website.

Revisal to Guidance on Continuing and Welfare Powers of Attorney

The Profession will be aware that the Society issued Guidance in relation to Vulnerable Clients and also Continuing and Welfare Powers of Attorney in 2013.

The Guidance in relation to Continuing and Welfare Powers of Attorney has been further revised. In particular, Practitioners should consider, when dealing with instructions for Continuing and Welfare Powers of Attorney and the issuing of correspondence to proposed Attorneys, the terms of Rule B 2.1.7 as is highlighted within the Guidance. It is suggested that the appropriate course, where Solicitors when writing to proposed Attorneys, asking them to confirm their willingness to be appointed, that they should be advised of the fact that there are legal consequences arising from such an agreement and that they should consider taking independent legal advice, as per the terms of Rule B 2.1.7.

Practitioners who are writing to proposed Attorneys, requesting that they sign, or authorise signature of, the registration application form, should consider the proposed Attorneys are entering into a Contract of Mandate with the associated legal consequences and therefore, when writing to non-clients regarding such matters, Solicitors should comply with Rule B 2.1.7.

If Solicitors choose not to write in terms of Rule B 2.1.7, it is recommended that the Solicitor's file show why they chose not to do this.

Courts Reform Bill

We are pleased that the Scottish Government has agreed to lower the exclusive competence for cases to be heard in the Sheriff Court from £150,000 to £100,000 however we continue to have concerns that the limit is too high. We have suggested a limit of £50,000.

We welcome the idea that personal injury cases should be taken out of simple procedure in specialist injury courts but we wonder why  personal injury cases were not taken out of simply procedure in courts across Scotland.

Raising Concerns' Guidance

The Regulatory Committee identified risks around a lack of clear guidance for when solicitors have a duty to raise concerns about their work or that of other solicitors.

The Regulatory Committee considered the options for a rule or for guidance presented by an independent consultant.  After detailed consideration it was decided that we would issues guidance, monitor matters arising, and review in the future to see if guidance was being effective, or further thinking on a rule was needed.

The new guidance will be effective from 1 August 2014.

Lender Exchange Update

Since the last lender exchange update issued on 21 May 2014, the Society has had a productive meeting with Decision First who are facilitating the new conveyancing panel management system Lender Exchange.

The Society has highlighted a number of concerns raised by members with Decision First and we have been given assurances that we will be provided with the final set of the Terms and Conditions which we will publish in the interests of openness and transparency when we are able to.

We have been advised that Lloyds Banking Group and Santander will communicate with their panel firms within the next 3-6 weeks to notify them of the impending launch and the procedure for this.

Accordingly, members who are on the Lloyds Banking Group and Santander panels should be alert to the prospect of being contacted by these lenders and Decision First.

 

27 June 2014