Andrew Stevenson

Everyone ought to grant a power of attorney. These useful deeds are governed by the Adults with Incapacity (Scotland) Act 2000, which requires a solicitor to certify that he has interviewed the granter and is satisfied that “the granter understands its nature and extent”.

Many clients who seek to grant such documents are octogenarians, spurred into action by tales of similarly-aged friends unable to access an incapax spouse’s bank account or to obtain information from the DWP.

In assessing a would-be client’s ability to understand the magnitude of a power of attorney it can be sensible to engage them in conversation about matters that have little or nothing to do with the document or the law. This can produce some interesting anecdotes, gems of social history. One client related to me his recollection of walking down a street as a very young child in Clydebank just after the air raids of March 1941. His abiding memory was not the commotion or smouldering buildings but the crunching sound of glittering broken glass underfoot.

When mental acuity is diminishing, it can sometimes be a race against time to get the document signed before the fog of decline descends impenetrably. Some individuals may prove to have an insufficient grasp of the situation or be too unstable to convince the solicitor of a true understanding of the effect of a power of attorney. I quickly recognised the futility of trying to engage with an elderly and seemingly genteel patient at Stobhill Hospital when she brandished her slipper at me while questioning my legitimacy, deploying foul-mouthed oaths and threats and lunging forward from her wheelchair. Alas, in that case the family required to seek a guardianship order instead.

Most solicitors are not qualified in psychiatry, and in borderline cases it is prudent to obtain the opinion of a doctor. One would certainly follow that course were one to be consulted by an individual who posted on social media an AI-generated image of himself in undulating robes with divine light emanating from his hands while appearing to perform a miraculous healing of a bedridden figure.

At first blush, this would give rise to a concern in the lawyer’s mind that the person was suffering from the affliction described as “god complex” or narcissistic personality disorder. If the client then advised his legal adviser that in truth he was depicted as a doctor rather than, say, Jesus Christ, it would definitely be time to suppress any cynicism and to terminate the consultation very politely. One would be fortified in that decision if it transpired that the aspiring messiah had already posted an image of himself attired as the Pope.

Fortunately, most clients demonstrate no doubts as to their sanity, and the system works well and to the benefit of clients and their families. It is surprising how many members of the public believe they can act on behalf of a spouse who loses capacity, and it comes as a shock to learn the task of safeguarding the adult’s interests falls by default to the local authority.

What surprises clients more is that it is currently taking around 14 months for the Office of the Public Guardian in Scotland to register powers of attorney and that Covid-19 is still being cited as a factor. Oddly, despite the fact that the same pandemic caused the same levels of disruption in England, the process of registration there lasts between only eight to ten weeks.

Andrew Stevenson is secretary of Scottish Law Agents Society. This article first appeared in The Scotsman.