Powers of Attorney in Scotland: are they open to abuse?
Denzil Lush, a former senior Court of Protection judge in England, in an interview on Radio 4 on Tuesday 15 August 2017, expressed concerns that many people who had granted a power of attorney in England & Wales were not aware of the lack of safeguards. On the show he advised that he had no intention of granting such a deed himself as he thought there was a risk of abuse, due to a lack of transparency and accountability in the system, which could have a ‘devastating effect’ on family relationships.
What is a power of attorney?
A power of attorney is a document which gives the authority to another person(s) to act on your behalf when you are either unable to do so yourself or seek the support of others. You can give power to this person to make decisions in relation to your financial affairs and/or your personal welfare.
What are the risks?
As with many things legal, the system in Scotland is different. In Scotland, a power of attorney is normally drawn up by a solicitor who must sign a certificate to confirm that the granter understands the nature and effect of the document. They must also satisfy themselves that the person granting the power of attorney is not being unduly influenced by anybody in making the decision to appoint an attorney. If they are in any doubt they would not allow the deed to be granted.
This differs from the system in England where it is possible to download the document from the internet and complete it without any involvement from a solicitor, which could open this up more to abuse.
If after granting the deed there were any concerns about its operation, the Office of the Public Guardian in Scotland has the power to investigate any concerns regarding the property or financial affairs of an adult.There is a similar office in England.
The story of war veteran Frank Willett has been circulating in the press alongside the comments from Denzil Lush. Mr Willett granted power of attorney to his neighbour Colin Blake in 2003. Mr Blake exploited his position by withdrawing large sums of money from Mr Willett’s account for his own benefit and taking many of Mr Willett’s valuable items including his war medals. Ultimately Mr Blake was arrested and pleaded guilty to theft earlier this year.
In our experience stories such as this are the exception to the norm.
What happens if you don’t grant a power of attorney?
If you do not grant a power of attorney while you still have capacity to do so, a court order will be required to give someone the authority to act on your behalf. Unlike with a power of attorney where you decide who you would like to act for you, it is the court who decides who is suitable.
In Scotland, it normally takes between 7–12 months to have a guardian appointed who can make decisions on your behalf.
Denzil Lush has suggested that he would prefer to have the court appoint the English form of guardian known as a deputy. He would prefer the scrutiny which goes along with the court application, the additional expense of a special insurance policy and annual accounts. But is this really what most families would want?
He suggested that the cost was £320 a year but in Scotland the costs of setting up and annual costs are often in the thousands, particularly so if the estate is large.
We still believe that granting a power of attorney in Scotland is appropriate. There is a robust system for reporting any concerns raised by family members or interested parties during the life of the granter.
Our team of solicitors are happy to guide you through the process and any concerns that you may have. Please contact us on 0131 200 1200 to discuss further.