State of independence

Our latest Law Talk with Martin...

A few weeks ago, I commented on warnings by Denzil Lush, recently retired senior judge, of the lack of safeguards surrounding Lasting Powers of Attorney. He said he would never sign one, citing an 83 year old, suffering from dementia, who gave an LPA to his neighbour, who then took money for his own use.

It turns out it is safer to be independent North of the border. Scotland’s Public Guardian, Sandra McDonald, said her inbox had "gone manic with Scottish lawyers anxious about what they say to reassure clients”. She pointed out the fundamental differences between LPAs north and south of the border.

The biggest difference in Scotland is that a proper assessment of capacity is required. A lawyer or doctor has to certify that the granter is aware of what it is, what powers they are granting and in whose favour, and that they are under no pressure to do so. This assessment is a critical safeguard. In England and Wales, the certification and witnessing is less prescriptive and so more open to abuse.

In our firm, we always assess and note our clients’ capacity. If there are any doubts, we involve a medical expert to go through the decisions and to assess capacity and then certify the LPA. This really protects the most vulnerable and should be a legal requirement here as it is in Scotland.

McDonald also said that the majority of LPAs in Scotland are drafted by solicitors following a detailed, private discussion between solicitor and granter. This legal involvement offers a significant protection. That is also how we would do it in our firm.

Thirdly, LPAs in Scotland are directive, i.e. powers are specific; the extent of the authority of the attorney is explicit. In England/Wales it is much more general although it can be limited if that is what you want.

In England/Wales, LPAs are too easy to do. You (or your naughty neighbour) can download the forms online, sort them all out and apply for registration. With no safeguards in place, you can see how easy it was for the neighbour in Lush’s example to get away with what he did.

So, for you or those close to you, see a lawyer to do it properly. It will cost more than DIY but it will be right and if there are challenges in future, the evidence will be there to support what you have done. If you know someone that you think is vulnerable, please bring them to see a lawyer to discuss it. Contact us here if you wish to book your free initial appointment.

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