Remote Certification of a Power of Attorney
Sections 15, 16 and 16A of the Adults with Incapacity (Scotland) Act 2000 require that the solicitor certifying capacity has interviewed the granter immediately before the granter subscribed the document.
In certain situations, solicitors may not be able to meet clients, or may wish to avoid meeting them, for the safety of their clients, themselves and others. At the same time they will, as far as possible, wish to maintain accessibility to the legal services that the public requires.
It will rarely be appropriate to delay complete fulfilment of an accepted instruction to have a Power of Attorney granted and registered. With a view to ensuring that an inability to meet with a client will not result in any undue delay and, with the agreement and approval of the Public Guardian, the following procedure may be adopted to satisfy the legislative requirements.
- The solicitor would require to provide the granter with the Power of Attorney document in advance either by post or, where the client has facilities to print it off, by email (preferably in a format which cannot be altered).
- The granter of the document should not sign the document in advance of the interview.
The granter must show the solicitor via video conference that the document is unsigned prior to the interview - The interview will take place and all the normal requirements for such an interview should be fulfilled, during the video conferenced interview
- If, following all normal criteria, the solicitor is satisfied that the document can properly be certified, then, at the solicitor’s request, the granter should sign the document and the witness – if there is one present – should sign as appropriate. The granter should then show the solicitor the signed copy power of attorney document
- The client should be instructed promptly to return the hard copy signed copy to the solicitor: see below.
The interview of the granter can take place by way of video conference between the solicitor and their client. This may be via Microsoft Teams, Skype, Facetime or other video conferencing means.
While it is not essential that a Power of Attorney document is witnessed, as the document becomes self-proving at the point of registration, it would be prudent that the document is witnessed by someone attending with the client, where possible. The witness, of course, cannot be the attorney or one of the proposed attorneys.
Where it is possible to have a witness attend with the client, the solicitor should involve the witness in the process, as viewed by the solicitor.
Once the document is signed the client should arrange to return the original, hard copy signed document to the solicitor as soon as possible. A photocopy or scanned copy will not suffice for this purpose, as sections 15(3) and 16(3) of the Act sets out that a continuing and/or welfare Power of Attorney shall be valid only if it is expressed in a written document which is subscribed by the granter.
The solicitor can only register the document once the principal, wet ink copy, is received. The certificate requires to be incorporated into that original document. It should be signed by the certifier on the same date as execution by the granter and attached to the original document once it is received.
It is a matter of professional judgement for a solicitor asked to certify as to whether these arrangements are appropriate in any individual case; and, if these arrangements are followed, whether the solicitor can thereupon properly certify. This Advice & Information refers only to the practical methodology for signing and certifying at a distance from the granter. It will mostly only be appropriate where the client is an existing client and the solicitor is satisfied that the client has capacity, there is no undue influence, and there is no other vitiating factor.
Where a new client wishes to instruct a solicitor in a Power of Attorney matter the same principles apply and solicitors will need to exercise their own judgment as to whether or not it is appropriate to conduct the entire piece of business using video conferencing technology. It is not to say that it would not be compliant with the relevant legislation. However, the professional obligations to ascertain relevant capacity, and to ensure that there is no undue influence or other vitiating factor, can prove to be more difficult when no physical meeting takes place. It is for those reasons that extreme caution should be exercised in proceeding in this way for new clients.
The procedure recommended above does not necessarily preclude a solicitor as certifier being satisfied by other means that the document has been signed by the granter, and signed immediately after the interview, in the absence of impersonation, undue influence, or other vitiating factor. In a particular case, for example when the granter is an existing client personally seen recently (for example, within a month), the solicitor might feel entitled to rely upon assurances (or even an assurance) by telephone.
However, this cannot be a “balance of probabilities” or similar assessment. Certification is the protection against all vitiating factors. Certifying solicitors must be satisfied, in each individual case, that they can properly certify, and that the decision to do so can be robustly justified if that should subsequently become necessary. There may be occasions when the solicitor concludes that it is inappropriate to certify, even when the procedure recommended above is followed. The risks will be greater if the interview not only is not conducted face-to-face, but the solicitor cannot see what is happening.
Our current guidance in relation to Capacity Generally, Guidance on Continuing and Welfare Powers of Attorney and Vulnerable Clients Guidance should be referred to and followed as necessary.
Last reviewed: 24 May 2022