Introduction

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").

In this guidance: 

"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.
"Client" includes a prospective client.

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.  

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 were originally issued following publication of a report by the Mental Welfare Commission for Scotland 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"). Both were last updated in May 2022. The D Report remains relevant. View The D Report.

Solicitors to whom this guidance applies should read at least the Summary to the D Report.  

3. It is not the purpose of this guidance to state or interpret the law, and it should not be read as seeking to do so. As a guide to good practice, it takes account of the provisions of the European Convention on Human Rights (“ECHR”) without addressing questions of law as to upon whom duties with reference to ECHR are imposed; and the provisions of the UN Convention on the Rights of Persons with Disabilities (“CRPD”) notwithstanding that they are persuasive but not binding in law. This guidance has been issued while the Scott Review is underway. It is expected that the Scott Review will take account of the provisions of ECHR and CRPD, and that future legislation may enshrine some equivalent requirements in law.  Solicitors should keep abreast of any such developments, which will not necessarily result in immediate updating of this guidance. 

Competence to act

4. Rule B1.10 provides that you should only act in matters where you are competent to do so. Competence to act in relation to Powers of Attorney includes (but is not limited to) knowledge of the following items: ability to ascertain and identify situations to which they may be relevant to an intending granter; and ability to explain them effectively to the intending granter and to take instructions on them.

The items referred to are:

  • All provisions of the 2000 Act relevant to Powers of Attorney and attorneys, and case law thereon.
  • General law of Powers of Attorney.
  • Relevant law and practice in relation to advance directives and advance statements, including but not limited to situations in which they might be issued in conjunction with a Power of Attorney.
  • Relevant law and practice on how other measures relating to the exercise of legal capacity inter-relate, or might inter-relate, with Powers of Attorney.
  • Relevant law and practice on measures that might apply if relevant capacity becomes impaired and if a POA is not in force, or available to be brought into force.
  • Relevant provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003 (“2003 Act”), including provisions of that Act to the effect that “party” status under the 2003 Act may be conferred upon a “named person” but not upon an attorney (see paragraph 12 below).
  • Relevant provisions of ECHR (including but not limited to those on deprivation of liberty under Article 5 of ECHR), and CRPD.
  • Relevant provisions of private international law, including those applicable in relation to (a) other jurisdictions in respect of which Hague Convention 35 on the International Protection of Adults (“Hague 35”) has been ratified, and (b) jurisdictions, including the other jurisdictions of the United Kingdom, in respect of which Hague 35 has not been ratified.
  • Relevant guidance from the Mental Welfare Commission for Scotland that may be in force from time to time.
Taking instructions

5. It is appropriate to defer accepting engagement, or taking anyone's instructions, until capacity to grant the POA has been established. The Society’s guidance on Capacity Generally should be consulted if the solicitor has any doubt as to their client’s capacity. In the event of incapacity to do that it may be appropriate to accept instructions from another interested person to apply for guardianship or to initiate other measures, provided that there is no conflict of interest in doing so.

6. Solicitors should ascertain whether the intending granter is habitually resident in Scotland, or whether a Scottish POA is competent upon other grounds; and, where appropriate, should include relevant express provisions in the POA document.

7. Solicitors should discuss relevant options with the client and assess whether a POA is appropriate in the particular case, compared with other available techniques. Both the benefits of a POA 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.

8. Where relevant, the solicitor should explain (a) functions and roles which cannot be delegated to an attorney; and (b) powers which by law are excluded, require to be express, or are conferred by statute; and that it may be better to state expressly any powers which the granter wishes to exclude.

9. 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 ECHR, the solicitor should explain the current position, any legal developments, and any current authoritative advice from Mental Welfare Commission for Scotland.

10. Solicitors should explain that capacity is not a “black and white” matter; that it can be variable over time, as to subject-matter, and dependent upon circumstances. They should explain the requirement under CRPD for support for the exercise of legal capacity. They should explain the possibility of making (in a POA document, or separately in a coordinated document) appointment of a supporter, and/or establishment of co-decision-making arrangements; and should offer to include such provisions in the POA document where they might be relevant.

11. Solicitors should ascertain whether any cross-border issues could foreseeably arise in relation to any POA which they prepare, and if so with which countries; and (except where clearly irrelevant) they should explain that unforeseen cross-border issues might arise. Where relevant, they should discuss and make recommendations as to (a) registration in the Books of Council and Session so as to benefit from section 4 of the Evidence and Powers of Attorney Act 1940, and (b) granting a parallel and coordinated POA (or equivalent document) in another jurisdiction.

12. Solicitors should explain and explore the options to appoint single or joint attorneys and one or more substitutes. The relative merits of larger joint appointments, or substitution arrangements, should be explained wherever two or more attorneys may be acting at the same time (whether original attorneys, substitutes, or a combination). The practicalities of situations in which any attorney may act alone, or alternatively in which joint actions and decisions of all attorneys are required, should be discussed and clearly set out in the POA document. Likewise, clear instructions should be taken as to when and in what order substitutions should take place.

Particular topics should include:

  • That to have more than one attorney acting at any time might reduce the risk of inappropriate or fraudulent conduct.
  • That if the same person(s) should be both attorney(s) and executor(s), following death of the granter there will in effect be no-one to hold the attorney(s) to account for the attorney’s(s’) acting.
  • That in the event of an attorney being temporarily unable to act, if there are no provisions enabling that attorney to step aside and resume acting later, and that attorney has to resign (for example, in order to trigger substitution), then it will not be possible to reinstate that attorney later.
  • The POA document as finalised must be completely clear, when presented to frontline medical staff (where there are welfare powers) or staff in financial institutions (where there are financial powers) as to whose instructions are required for any particular acts or decisions, in any circumstances that might arise. A solicitor who drafts a document that presents significant doubts or difficulties as to operability in any reasonably foreseeable circumstances may be held to have failed to provide adequate professional services (unless it can be shown that the potential hazards of particular instructions have been explained and that the granter has understood those hazards but nevertheless insisted upon the instructions given).

13. Further matters on which the solicitor should normally advise and take instructions include:

  • Continuing or welfare powers, or both?
  • 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))?
  • Are the circumstances appropriate to mention, discuss, and possibly take instructions on the appointment of a “supervising attorney”?
  • 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 attorney be appointed also to act as supporter and/or co-decision-maker, with supplementary power and authority relevant to those roles, such as access to confidential data and rights to accompany the granter?
  • Should the POA be linked to an Advance Directive?
  • Should the POA be linked to appointment of a “named person” under the 2003 Act (in respect that a named person, but not an attorney, can hold “party” status in proceedings under the 2003 Act)?
  • 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?
Certification

14. Continuing and welfare POAs 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 the Capacity Generally guidance be followed. It is not good practice to consult a proposed attorney for purposes of certification, and in the D Report the Mental Welfare Commission for Scotland recommended that consideration be given to amending the 2000 Act to exclude reference to a proposed attorney for this purpose.

15. 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.

16. 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. Unless the solicitor can readily establish that they can in all respects properly certify without having to engage in advising the granter, it is likely that the solicitor will require to follow the proper procedures and requirements for engagement by the granter as the solicitor’s client.

Particularly where the granter has executed a standard form of document, or one otherwise commercially produced, the solicitor should bear in mind that certifying that there are no vitiating factors includes certifying that the POA document is not vulnerable to subsequent challenge on grounds that it fails to reflect properly informed decisions implementing the intentions, will and preferences of the granter.

Solicitors should be aware that POA documents may have been commercially produced for a fixed cost and without warning of additional costs inter alia to obtain certification: costs likely to be incurred to the solicitor acting as certifier should be explained, preferably before or at the outset of the interview. In general terms, a solicitor is unlikely to be held to have acted inappropriately if the solicitor judges that the hazards or disadvantages of the solicitor certifying a POA document that neither the solicitor nor a colleague of the solicitor has prepared render it inappropriate to accede to a request to certify.

17. Solicitors 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, the solicitor 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. Where necessary, the solicitor who has acted in the preparation of the POA should explain and follow appropriate procedures for remote certification. In that regard reference should be made to the Society’s Advice and Information on Remote Certification of a Power of Attorney.

18. 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 must 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.

19. Notwithstanding any consultation that takes place between the solicitor and any other relevant person in relation to the determination of capacity or otherwise, the solicitor as certifier retains responsibility for the certificate issued by that solicitor.

20. Solicitors should not refuse to act, or refuse to certify, in circumstances where such refusal could amount to discrimination on grounds of disability. In respect that the definition of “discrimination on the basis of disability” in Article 2 of CRPD includes “denial of reasonable accommodation”, where appropriate solicitors should use large print, or simplified forms of wording, or make other reasonable adjustments.

Having regard to the obligation under Article 12.3 of CRPD to provide support for the exercise of legal capacity, in appropriate cases solicitors should provide or recommend such support, if known to them. Such cases may give rise to finely balanced judgements, including as to whether or not to accept instructions, and whether attempted provision of support amounts to undue influence. Where a solicitor has found it necessary to make such judgements, the solicitor should make and keep a record of matters addressed, any advice received, and the reasons for arriving at such judgements.

Who is my client?

21. The granter of a POA is the solicitor's client.

22. Where a solicitor issues any document for signature to a party or prospective party "to a transaction of any kind" the solicitor must adhere to the terms of Rule B2.1.7. "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.

23. 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. Acting in the client’s best interests includes taking reasonable steps to ensure that appointees understand, feel able to exercise, and are making informed decisions to accept, the responsibilities that they are undertaking. It will clearly not be in the granter’s best interests to proceed with an appointment (whether as original or substitute attorney) where there is a significant foreseeable risk that the appointee might decline or resign through lack of previous understanding of the realities of the role. That however does not extend to possible changes in the appointee’s capabilities or circumstances in the due course of time.

Revocation

24. The foregoing guidance on taking instructions in relation to continuing and welfare POA's should so far as is 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.

25. 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 therefore 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.

 

Last reviewed: 24 May 2022