Practice update: Mental Welfare Commission report
Gillian Alexander is the Law Society of Scotland's Head of Professional Practice.
The Mental Welfare Commission has published a report regarding the circumstances leading up to the untimely death of a vulnerable person with learning disabilities and physical ill health.
The Commission wishes to remind solicitors of their responsibilities when working with clients who seek to grant Power of Attorney and the usefulness of existing guidance.
The sections which relate most closely to this situation are as follows.
- B1.5 Capacity Generally
- B1.5 Adults with Incapacity (Scotland) Act 2000
- B1.5 Vulnerable Clients Guidance
- Guidance on Continuing and Welfare Powers of Attorney
If you work in this area of law, this may be an opportunity to refamiliarise yourself with the relevant Guidance.
A solicitor must (a) have instructions from their client and (b) be satisfied when taking instructions that the client has the capacity to give instructions in relation to that matter.
This guidance applies whenever a solicitor is, or reasonably ought to be, aware that a client or prospective client (whether having attained the age of legal capacity or not) is or may be vulnerable.