Division H: Guidance on Continuing and Welfare Powers of Attorney
1. This 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 ("2000 Act"). "POA" refers to such a Power of Attorney. "Rule" and "Rules" refer to the Law Society of Scotland Practice Rules 2011. "Must" refers to a binding obligation under statute, regulations, Rules or the like. "Should" refers to good practice: failure to comply may be taken into account in disciplinary or other proceedings. Where a solicitor considers that particular circumstances justify departure from this guidance, a written record of those circumstances and the reasons for the departure should be kept. "Client" includes a prospective client.
2. 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 13th February 2012) ("the D Report"). View The D Report.
Solicitors to whom this guidance applies should read at least the Summary to the D Report. The D Report includes a recommendation that the Law Society of Scotland should:
"Update existing guidance for solicitors in respect of Powers of Attorney to take account of the changes in the AWI Act. Such guidance should address situations where the process of granting a Power of Attorney is initiated by a party other than the granter, as well as situations where there may be some question as to the granter's capacity, the presence of undue influence, or other vitiating factors. Guidance should also emphasise the different ethical considerations involved for the granter in delegating welfare as opposed to financial powers."
The Society accepted that recommendation and is grateful to MWC for assisting in the preparation of this guidance, which relates specifically to continuing and welfare POA's granted under the 2000 Act.
3. This guidance supersedes the Law Society guidelines on Powers of Attorney [July 1998]; apart from which it should be read subject to the terms of relevant Rules and guidance published by the Society thereon. It is not the purpose of guidance to state or interpret the law, and it should not be read as seeking to do so.
4. It may be appropriate to defer accepting engagement, or taking anyone's instructions, until capacity to grant the POA has been established, and in the event of incapacity it may be appropriate to accept instructions from the initiator to apply for guardianship or to initiate other measures, provided that there is no conflict of interest in doing so.
5. Solicitors should discuss with the client and assess whether a POA is appropriate in the particular case, compared with other available techniques. Both the benefits of POA's and also the risks, including the risk that the attorney could misuse the power, should be explained. The lesser official supervision of attorneys, compared with guardians, should be explained. The distinction between property and financial powers, on the one hand, and welfare powers, on the other, should be explained, and express instructions taken as to whether the granter wishes to confer both categories of powers. It should be explained that a POA, particularly if it includes welfare powers, can be a very powerful document. Within both categories of powers, the solicitor should ascertain whether the granter wishes to confer plenary powers, and further specific powers without prejudice to the plenary powers, or alternatively specific powers only.
6. Where relevant, the solicitor should explain powers which by law are excluded, require to be express, or are conferred by statute; and that it may be best to state expressly any powers which the granter wishes to exclude.
7. The solicitor should take express instructions as to any powers of compulsion or restraint, and should explain both the possible need and the particular risks of conferring such powers. Where the granter proposes to confer powers which could result in a deprivation of liberty in terms of Article 5 of the European Convention on Human Rights, the solicitor should explain the current position and any legal developments.
8. Matters on which the solicitor should normally advise and take instructions include:
• Continuing or welfare powers, or both? • Single or joint attorneys? • Substitute or substitutes? The relative merits of larger joint appointments, or substitution arrangements, should be explained, and clear instructions should be taken as to when and in what order substitutions should take place. • In the case of continuing powers, should they come into force immediately, or upon request, and/or upon reasonable belief or certification? • In the case of welfare powers, should they come into force upon reasonable belief or certification? • Should there be different trigger provisions for first attorneys and substitute attorneys (for example, reasonable belief in the case of a spouse who is first attorney but certification in the case of a child or children as substitute(s))? • Powers? See paragraphs 6 - 7above. • Are the proposed attorney(s) and any proposed substitute(s) willing to act? • Should there be a requirement to consult specified persons in the exercise of some or all powers? • Should a record of wishes and feelings be included in the document, or in a separate document? • Should the POA be linked to an Advance Directive? • Where the attorney is a spouse or civil partner, should section 24 of the 2000 Act be excluded? • Should provisions regarding choice of applicable law be included (see 2000 Act, Schedule 3, para 4)? • Should the effects of bankruptcy be taken into account (see 2000 Act, sections 15(5) and 16(7)? • Should registration be deferred (see 2000 Act, section 19(3)), and if so what should be the trigger for registration? • To whom should copies of the POA document be sent by the Office of the Public Guardian following registration (see 2000 Act, section 19(5)(b))? • Should anyone else be notified?
9. Continuing and welfare POA's cannot be operated unless registered, and cannot be registered unless certified. Practising solicitors may act as certifiers. They should consult as to capacity and name the person whom they have consulted, in accordance with the relevant provisions of statute and of the prescribed form of certificate, unless confident from their own knowledge of the granter that the granter has relevant capacity. Where the solicitor as certifier has significant cause for doubt as to capacity, it is recommended that paragraph 9 of the vulnerable clients guidance be followed, and that guidance would normally be sought from a medical practitioner or clinical psychologist. Where the solicitor as certifier has formed a clear view as to capacity or incapacity, and seeks corroboration of that view, it may be appropriate to seek the views of another professional, such as a nurse or social worker. Exceptionally, the views of a lay person may be sought. However it is not good practice to consult a proposed attorney for purposes of certification, and in the D Report MWC recommended that consideration be given to amending the 2000 Act to exclude reference to a proposed attorney for this purpose.
10. Solicitors as prospective certifiers should satisfy themselves as to capacity before taking instructions and preparing the document, though should be alert to the possibility that capacity may have altered between taking instructions and time of execution.
11. Solicitors should take particular care if asked to act as certifier when they themselves have not taken instructions and prepared the document. In that situation they may require to proceed in the same manner as if they were taking instructions to prepare the document. Likewise, they should not without good reason ask someone else to certify execution of a document which they have prepared. If the proposed certifier is not a practising solicitor, they may require to ensure that the certifier understands the requirements for capacity and the meaning in law of undue influence and of other vitiating factors. As noted in paragraph 10 above, the certifier must not simply rely upon any presumption of capacity.
12. Neither the 2000 Act nor the prescribed form of certificate provides for consultation as to undue influence or other vitiating factors. The solicitor as certifier shall nevertheless consider whether it is appropriate or necessary to make enquiries or consult upon those elements. The prescribed wording "I have no reason to believe …." should be applied by reference to the standards of a solicitor competent to act in relation to continuing and welfare POA's (see paragraph 11 of the vulnerable clients guidance) acting as a careful and conscientious professional.
13. Notwithstanding any consultation in the matter of capacity or otherwise, the solicitor as certifier retains responsibility for the certificate issued by that solicitor.
Who is my client?
14. The granter of a Power of Attorney, is the solicitor's client. All relevant Rules should be complied with in relation to that client - including Rule B 4.2 (providing written intimation in accordance with that Rule "when tendering for business or at the earliest practicable opportunity upon receiving instructions"); Rule B 6.23.1 (compliance with Money Laundering Regulations); Rule B1.4.1 (acting in the best interests of your client); Rule B1.9.1 (communicating effectively with your clients and others); Rule B1.10 (only acting in those matters where you are competent to do so); and Rule B1.15.1 (not unlawfully discriminating in your professional dealings with other lawyers, clients, employees and others). Of particular importance in the context of vulnerable clients are Rule B 1.5.1: "You are the agent of your client and must have the authority of your client for your actings...."; Rule B 1.7.1, under which solicitors must not act where there is a conflict of interest; and Rule B 1.7.2, under which solicitors must exercise caution where there is a potential conflict of interest and, if the potential for conflict is significant, not act for both parties without the full knowledge and express consent of the clients. If there is doubt as to the capacity to instruct, that should be resolved before accepting engagement of a new client, or before accepting instructions from an existing client.
15. Where a solicitor issues any document for signature to a party or prospective party "to a transaction of any kind" the solicitor should consider Rule B 2.1.7. "Issue" means issuing in any way, including giving the document to the client or other third party to take to the proposed signatory. In the case of continuing and/or welfare Powers of Attorney, these should only be prepared by a solicitor acting for the granter.
16. Proposed appointees under the Adults with Incapacity (Scotland ) Act 2000 should be referred to relevant Codes of Practice and other material available on the Public Guardian's website, as may be appropriate.
17. The foregoing guidance on taking instructions in relation to continuing and welfare POA's should so far as relevant be followed when taking instructions to revoke such a POA. Particular care should be taken to identify vulnerability which may have arisen or developed since time of granting. The same guidance in relation to certification should be followed.
18. Solicitors instructed in relation to the Revocation of a POA must also consider upon whom intimation of any Revocation is made. This should include intimation upon any attorney who has accepted appointment and is acting as such. An attorney is party to a contract of mandate and therfore, the granter (and by extension, any solicitor instructed by the granter), seeking to revoke a POA, would require to give notice of termination of the contract to the attorney. A Revocation Notice must also be certified and sent to the Public Guardian. It is questionable whether a Revocation Notice can be properly certified if the contract of mandate has not been first terminated by notice to the attorney. Good practice would suggest that where an attorney has been appointed, and appropriate instructions to revoke appointment are implemented, the attorney should be given notice of the termination prior to certification of a Revocation Notice and transmission of the same to the Public Guardian.