Oops – lost attorneys

Mrs X appointed her son A as attorney, and her daughter B as substitute attorney. A commenced acting. Then he went abroad to work, so he resigned and B took over. A couple of years later B became ill and unable to act, and A returned from abroad. But A could not resume acting. Such substitutions cannot be reversed.

The obvious question, to be asked most pertinently of whoever prepared the document, is why Mrs X did not appoint A and B as joint attorneys, perhaps with powers (compare the style power of attorney in Appendix 5 to Ward, Adult Incapacity) to agree – subject to certain limitations – the extent to which one or other might act alone, and an explicit provision that third parties might accept without further enquiry a statement by one attorney that that attorney is at the time the granter’s sole attorney, or has been authorised by any other attorney to act alone in the matter in question.

It is unhelpful that references in the Adults with Incapacity (Scotland) Act 2000 to both joint and substitute attorneys are relatively sparse, and not always consistent. The resignation provisions in s 23 provide for a 28-day delay, except where a remaining joint attorney is willing to continue to act, or a substitute attorney is willing to take over. Inconsistencies include that whereas under s 20(2)(e)(ii) the sheriff may revoke “the appointment of an attorney”, thus allowing a joint attorney to continue to act, or a substitute to take over, under s 22A the granter may revoke the power of attorney, or any of the powers granted by it, but not the appointment of an attorney.

There is less clarity in s 24(1) and (1A) as to the status of a joint or substitute attorney under the provisions that a power of attorney granted to a spouse or civil partner shall “come to an end” on separation, divorce, dissolution or declarator of nullity. However, it should be noted that “come to an end” in those circumstances, or on appointment of a guardian with relevant powers as referred to in s 24(2), means what it says. It means termination, not suspension, as does s 15(5) which provides that an agent’s authority under a continuing power of attorney ends in the event of the bankruptcy of the principal or agent (under s 16(7) this does not apply to welfare powers). Under all of the above provisions, the ending of the appointment of the attorney in question is irrevocable, whether or not a joint attorney continues, or a substitution is triggered.