Inner House upholds disputed power of attorney wording

Doubts over the validity of a commonly used form of continuing power of attorney have been laid to rest by the Inner House of the Court of Session.

In a special case presented by the Office of the Public Guardian, judges decided that the wording “I, [name], residing at [address] appoint [attorney] to be my continuing attorney in terms of section 15 of the Adults with Incapacity (Scotland) Act 2000” was sufficient to comply with section 15(3)(b) of the Act, which requires a statement "which clearly expresses the granter's intention that the power of attorney be a continuing power".

The wording appeared in a style available on the OPG website and commonly used by solicitors, but in a decision in the case of NW in Glasgow Sheriff Court in May, Sheriff John Baird held that more explicit wording was required and that the deed before him, which adopted that formulation, was invalid.

However, following a hearing yesterday (10 December), the Inner House delivered its decision that the form of words used was valid.

The court also considered the requirements of section 15(3)(ba), which provides that where the continuing power of attorney is exercisable only if the granter is determined to be incapable in relation to decisions about the matter to which the power relates, the continuing power must state that the granter has considered how such a determination may be made.

It decided that section 15(3)(ba) did not apply, as that provision came into force in 2007, whereas the power of attorney in question had been granted in 2004. However, it observed that had the deed been granted today, section 15(3)(ba) would not apply as the deed took effect on registration rather than on incapacity.

Written reasons for the decision will be given in due course.