Legal safeguards for Scottish powers of attorney

In late 2017, a retired English judge Denzil Lush made highly publicised remarks about the risks of granting an English Power of Attorney. Mr Lush commented that he would never grant a lasting Power of Attorney (LPA) over his financial affairs, because of the risk of abuse. He estimated that one in eight English LPAs were misused by Attorneys, to the detriment of the donor’s financial affairs.

Mr Lush’s remarks resulted in significant press coverage and a large number of calls from anxious members of the public to their solicitors or to the Office of the Public Guardian. Scotland’s Public Guardian, Sandra MacDonald, issued a statement reassuring the public on the safe use of Scottish Powers of Attorney.

Ms McDonald confirmed that there are a number of differences between Scottish and English Powers of Attorney. One key difference is that Scotland requires an assessment of the capacity of the person granting the Power of Attorney before the document is granted. A lawyer or doctor has to certify that the granter is aware of what a Power of Attorney is, what powers they are granting to whom, and that they are satisfied that the granter is not being pressured to grant the document. Ms McDonald commented, “This capacity assessment is a critical safeguard”.

In addition, the majority of Powers of Attorney in Scotland are drafted by solicitors on behalf of their clients, following detailed discussions. Ms McDonald added, “This legal involvement offers a significant protection”. In England and Wales, an LPA can be registered with minimum formalities using a paper form or even an online process.

The third protection in Scotland is that the powers granted by a Power of Attorney are specific rather than generic as in England. “The extent of the authority of the Attorney [in Scotland] is explicit”, said Ms McDonald.

Ernie Boath a Partner and Head of Miller Hendry’s Private Client Department commented, “Although there have been cases of Attorneys abusing their powers, the Scottish system has significantly more safeguards in place to protect against this. If any misconduct does occur, there is a system in place to deal with it.”

Ernie added, “The statement issued by Ms McDonald should serve to reassure the public that there are appropriate safeguards in place in Scotland and it also highlights the importance of granting Powers of Attorney in favour of people you trust.”

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