Powers of attorney: two essential practice points

Two frequent omissions by solicitors preparing powers of attorney risk being treated as inadequate professional services. 

Do all solicitors taking instructions to prepare powers of attorney explain the relevance of supported decision-making and co-decision-making provisions, and advise that they be incorporated? Do they advise against appointing the same person to be both sole attorney and sole executor, because of the conflict of interest thus inevitably created in the latter role?

Supported decision-making and co-decision making

People with disabilities are entitled to the support that they require in exercising their legal capacity, under article 12 of the UN Convention on the Rights of Persons with Disabilities. Older persons have the right to receive appropriate support in taking decisions and exercising legal capacity, including the right to appoint a supporter, under principle 13 of Council of Europe Recommendation (2014)2 on the promotion of human rights of older persons.

The myth that capacity is all-or-nothing was dispelled long ago. What may also be a myth is that anyone is so capable as never to need any support when acting or deciding in any matter, or that anyone is so incapable that even with maximum support it is impossible for them to act and decide in any matter, or at least for the act or decision appropriate to them as an individual to be constructed. Between those extremes, there is a large space filled with an infinite variability of capabilities, with or without support, for particular acts or decisions, in particular circumstances, and at particular times.

A granter may competently grant a power of attorney if the granter satisfies the basic requirements for validity, even if no longer capable of all the actings entrusted to the attorney. Powers of attorney based on a simple style of power of attorney that I offered in Adult Incapacity (2003) have been used many times by people with learning disabilities, or already diagnosed with dementia. Adequate professional services already require that necessary support be provided to enable this where appropriate. Every power of attorney document must be tailored to the individual granter.

One may competently predict that recognition in statute of the role of supporter will follow the current review of incapacity legislation by the Scottish Government. It is a role that already exists. As a matter of practice, it must be provided for now. The difficulties frequently encountered by supporters in accessing relevant information must be addressed.

The essence of co-decision-making is simple. In situations where capacity is marginal or doubtful, a decision or contractual commitment by both granter and attorney will always be effective, without need to assess the granter’s capabilities at that moment for that purpose. If the granter in fact happens to be capable, it is the granter’s valid act or decision. If not, and if it is within the authority of the attorney acting as such, it is also valid.

Some years ago, the Public Guardian confirmed that power of attorney documents containing provisions for support and co-decision-making may be registered, provided that the formal requirements for a registrable power of attorney are met. Many documents containing simple provisions in such terms have since been registered. The possibility of doing so should be offered to every granter.

Conflict of interest

It is a cause of frequent complaint that it is not within the functions of the Public Guardian to investigate concerns about the actings of an attorney with financial and property powers, if the granter is no longer alive. But it is for the executors of the deceased granter to hold the attorney to account, in every such case. Power of attorney documents often provide so explicitly.

Surprisingly often, one hears of complaints by beneficiaries that attorneys appear to have helped themselves inappropriately to funds or assets of the granter, or to have made inappropriate gifts, typically to other members of their own immediate family. Also surprisingly often, one is told that the sole attorney is also sole executor. Appointment of a judicial factor, or other redress, might be appropriate; but given the obligations on executors to hold attorneys to account, it is clearly inappropriate to advise appointment of an attorney as sole executor to the granter, or to accept instructions from an executor so conflicted to act in the administration of the estate. Such conflict is inevitable in every case, except where no one other than the attorney is a potential beneficiary or claimant.

The foregoing are but two of many points of good practice that may be engaged in providing adequate services to clients contemplating the appointment of attorneys, having regard to developments in recent years, but in particular in an era of developing awareness of the impact of applicable human rights principles.