The Law Society of Scotland has issued a statement urging solicitors to take action, following a recent Sheriff Court decision, which brings into question the validity of many Scottish Powers of Attorney (POAs).
Sheriff John Baird sitting at Glasgow, held that a Continuing Power of Attorney granted in favour of a bank was invalid, and did so on the basis that it was not drafted in accordance with section 15 of the Adults with Incapacity (Scotland) Act 2000.
With the bank drafting the document using a widely uses style available on the Office of Public Guardian (OFG) website, the decision may have major consequences for the legal professions by rendering vast numbers of already granted POAs invalid.
A rightly concerned Law Society has called upon all practitioners undertaking private client and adult incapacity work, to review previously drafted and registered POAs, changing the wording where appropriate. Practitioners may also wish to re-consider their drafting practices and use of styles in relation to POAs.
Coral Riddell, Head of Professional Practice at the Law Society, said: “In his opinion, Sheriff Baird has acknowledged that the consequences of his decision could be that other Powers of Attorney in a similar style could also be invalid. This could have very serious implications for solicitors and some of their most vulnerable clients. We intend to look into the matter more closely, but in the meantime are advising solicitors to review any power of attorney documentation they hold and consider whether they should alter the wording.” Ms Reddell added: “We are aware that the Sheriff’s decision is under appeal and will continue to keep our members updated.”
The Law Society’s statement in full can be accessed at http://www.lawscot.org.uk/news/press-releases/2014/may/poadocuments3may2014
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