This is a very helpful announcement from OPG Scotland.

“We are aware that difficulties have been encountered when trying to use a non-Scottish Power of Attorney (PoA) in Scotland, as Organisations have not accepted the authority given in a non-Scottish PoA.

The Adults with Incapacity (Scotland) Act 2000 suggests a non-Scottish PoA is automatically valid in Scotland. Consequently there is no arrangement under the law for having it formally endorsed.

In recognition of the difficulties experienced and to offer support we have devised a Certificate which can be printed and presented along with the PoA to an Organisation. This may assist in getting a non-Scottish PoA accepted in Scotland. If you need more information generally or about how best you might proceed in a given case please contact e-mail opg@scotcourts.gov.uk“

More on this can be found here.

The latest update from the Office of the Public Guardian (Scotland) on the current Powers of Attorney position can be found here.

The update includes the following:

“We are delighted that uptake of the electronic process for submitting powers of attorney is becoming increasingly popular. This system is easy to use and allows PoAs to be registered within a matter of days.  We would urge you, if you have not used the electronic format, to please give this active consideration. “

“The Scottish Government has produced guidance to help support the involvement of GPs in adult protection.

This guidance is designed to ensure that GPs are part of local multi-agency arrangements for adult protection and thereby enabled to fulfil their statutory responsibilities under the Adult Support and Protection (Scotland) Act 2007.”

The guidance can be found on the OPG Scotland website which can be found here.

“Substitute Attorneys

We have now received the further, clarifying advice referred to in recent communications in regard to the position of substitute attorneys. The result of that advice is such that the Office of the Public Guardian has retracted the original policy decision which required evidence of a substitute attorney’s preparedness to act at the point of initial registration.

In summary, the status quo remains in that only principal attorneys have to confirm their preparedness to act at the point of initial registration. As is now, where there is a substitute attorney, OPG will seek such confirmation only where the principal attorney fails.

We sincerely apologise for any inconvenience that this may cause you.”

More on this can be found here.

4 March 2013

Power of Attorney (PoA) Update – Manual Submissions

There is currently a 6 week waiting period before your PoA can be processed and returned to you. This week we will be working on PoAs received on and around 23rd January 2013.

Last week we processed:

• 343 PoAs – those received between 18th December and 22nd January; and
• 147 PoAs which were required urgently. Please note that this service may be requested if there is a genuine urgency to process a PoA and the reason is provided.

More on this can be found here.

The Public Guardian has announced that from 1st April 2013, substitute attorneys will be required to confirm by way of signature, that they are willing to act at the point of registration.

This change in practice will impact on the Schedule 1 certificate, which is incorporated in the power of attorney document, as it will be necessary to state the names of any substitute attorneys in Section 4 of the certificate.  These requirements will apply to continuing and/or welfare powers of attorney signed after 1st April 2013.

The power of attorney registration form that we currently provide is being modified and will include a facility for substitute attorneys to confirm their willingness to act.

This form will be available from the “Power of Attorney Registration Forms and Guidance Notes” section of the website by the end of this month.  This version of the form may be used prior to 1st April 2013.

More on this can be found here.

Sandra McDonald, Public Guardian has provided an update on the current power of attorney position.

This is from the website of OPG Scotland.

“The Public Guardian is aware of the significant problems experienced by attorneys, withdrawers and guardians when dealing with banking institutions and other fund holders. There is a regular programme of awareness raising and training with fund holders to try and reduce these difficulties but this makes little impact at the present time. The Equality and Human Rights Commission are keen to hear from individual attorneys, withdrawers or guardians, who encounter such difficulties and with permission may be able to raise a legal challenge against a fund holder on the grounds that they are treating incapable adults less fairly than a capable person. The Commission can be contacted:

• By e-mail scotlandhelpline@equalityhumanrights.com or
• By telephone on 0845 604 5510 or
• In writing to Equality and Human Rights Commission Helpline Scotland
  Freepost RSAB-YJEJ-EXUJ
  Equality and Human Rights Commission
  PO Box 26961
  Glasgow, G2 9DU”

More on this can be found here.

Further update from Office of the Public (Scotland) on processing times for powers of attorney.  The update can be found here.

This case concerns a matter that had not previously come before the Scottish courts.

The facts of this case were not in dispute and were set out in a joint minute agreed by the parties.   Miss Isabella Gordon granted a Power of Attorney in 1996 in favour of her solicitor.  This included the power to sell any part of her estate.  In 1997 she executed a Will in which she bequeathed her home in Stonehaven to John Turner.  In 2001 Miss Gordon became incapable of managing her own affairs and moved into a nursing home.  Her Attorney sold her home later on that year.   Miss Gordon died in 2008.

The question for Lord Tyre was whether the legacy of the house was “adeemed” or was it “converted”, so that the beneficiary is entitled to a sum equivalent to the proceeds of sale of the house.

“Where the subject matter of a bequest (whether heritable or moveable) has been disposed of by the testator so that it no longer forms part of his or her estate at the date of death, the bequest or legacy is said to have been adeemed and therefore cannot take effect.”

Lord Tyre also made the following point: “In contrast to the doctrine of conversation, the intention of the testator is not regarded as relevant to ademption.”

The crucial point here appeared to be that the parties agreed the following:  “The sale of the house by [the attorney] was a prudent act of administration, having regard to the disadvantage in leaving the house empty with attendant maintenance costs.  It was not a necessary act, not having been an act which [Miss Gordon] as principal, had she been sui juris ["full legal capacity"], would have been constrained to effect, there being sufficient other funds available to meet the costs of [Miss Gordon's] care.”

Lord Tyre held that as the sale of the house by the Attorney was a prudent act of administration rather than a necessary act to fund Miss Gordon’s care, the legacy was not adeemed by the sale.  John Turner was therefore “entitled to receive a cash equivalent to the proceeds of sale of the house.”  In addition he is entitled “to receive a sum representing the fruits of these proceeds during the period since the date of receipt of the sale proceeds.”

One last point on expenses.  Lord Tyre agreed that both parties were entitled to their expenses from the executry estate.

Thanks to Gillian Campbell of Biggart Baillie and Nicola Smith of Cairn Legal for tweeting about this case.

The case report can be found here.