Action following the Mental Health Commission report on the case of Mr and Mrs D

All solicitors must be alert to possible impairments of capacity, undue influence and other factors affecting a client or potential client, across a wide spectrum of work. The Mental Welfare Commission for Scotland has, in a recent report, recommended review and updating of guidance in relation to powers of attorney, but the issues are of wider relevance.

The report concerns Mr and Mrs D, a couple with mild learning disabilities and limited reading skills. Mr D’s brother (E) instructed his own solicitor to prepare powers of attorney by Mr and Mrs D in his favour. The documents, which were complex, were executed, and certified, at a meeting in a GP’s surgery. Mr and Mrs D did not know why they had been taken there. Over the next six years they were subjected by E to dominant and bullying conduct, and various forms of abuse, before the powers of attorney were finally revoked.

The report emphasises the significance of the element of ability to act in the statutory definition of incapacity. Inability to act in accordance with otherwise apparently competent decisions, or to maintain consistency in the face of influence (including conflicting influences) may point to underlying incapacity. It also discusses undue influence and other factors.

Existing rules and guidance are robust on points such as that the granter of a document is the client, instructions must be taken from the granter, our professional responsibility is to the granter, and (as always) avoiding conflict of interest (including as between granter and grantee).

The Commission has made an offer of assistance, which the Society has accepted, in developing guidance on applying existing rules and guidance, and providing further assistance in detecting, assessing and addressing situations of undue influence. Enhanced guidance is unlikely to be effective in every case, but may help to reduce the incidence. Initial consideration has been referred to the Society’s Mental Health and Disability Subcommittee.

For a longer article on the case see



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