Law Society: Power of attorney – best practice

Sections 15, 16 and 16A of the Adults with Incapacity (Scotland) Act 2000 require that the solicitor certifying capacity has interviewed the granter immediately before the granter subscribed the document.

We appreciate that, given the current situation, solicitors may not be able to meet clients, or may wish to avoid meeting them, for the safety of their clients, themselves and others. At the same time they will, as far as possible, wish to maintain accessibility to the legal services that the public requires. It will rarely be appropriate to delay complete fulfilment of an instruction to have a power of attorney granted and registered. We have therefore been looking at ways that solicitors are able to discharge their obligations and, with (agreement/approval) from the Public Guardian, the following procedure may be adopted to satisfy the legislative requirements. 

  1. The solicitor would require to provide the granter with the power of attorney document in advance either by post or, where the client has facilities to print it off, by email (preferably a PDF version which cannot be altered).
  2. The granter of the document should not sign the document in advance of the interview.
  3. The granter must show the solicitor via video conference that the document is unsigned prior to the interview.
  4. The interview will take place and all the normal requirements for such an interview should be fulfilled, during the video conferenced interview.
  5. If, following all normal criteria, the solicitor is satisfied that the document can properly be certified, then, at the solicitor’s request, the granter should sign the document and the witness should sign as appropriate. The granter should then show the solicitor the signed copy power of attorney document.
  6. The client should be instructed promptly to return the hard copy signed copy to the solicitor: see below.

The interview of the granter can take place by way of video conference between the solicitor and their client. This may be Skype, Facetime or other video conferencing means. While it is not essential that a power of attorney document is witnessed, as the document becomes self-proving at the point of registration, it would be prudent that the document is witnessed by someone attending with the client, where possible. The witness, of course, cannot be the attorney or one of the proposed attorneys.

Where it is possible to have a witness attend with the client, the solicitor should involve the witness in the process, as viewed by the solicitor.  

Once the document is signed the client should arrange to return the original, hard copy signed document to the solicitor as soon as possible. A photocopy or scanned copy will not suffice for this purpose, as sections 15(3) and 16(3) of the Act sets out that a continuing and/or welfare power of attorney shall be valid only if it is expressed in a written document which is subscribed by the granter. The solicitor can only register the document once the principal, wet ink copy, is received. The certificate requires to be incorporated into that original document.   It should be signed by the certifier on the same date as execution by the granter and attached to the original document once it is received.

It is essential that the solicitor is able to see the unsigned document prior to proceeding with the interview and subscription, and then to see it as signed. Accordingly, an audio only interview, i.e. by telephone only, would not meet the legislative requirements.

It is a matter of professional judgement for a solicitor asked to certify as to whether these arrangements are appropriate in any individual case; and, if these arrangements are followed, whether the solicitor can thereupon properly certify. This guidance refers only to the practical methodology for signing and certifying at a distance from the granter. It will mostly only be appropriate where the client is an existing client and you are satisfied that the client has capacity, there is no undue influence, and there is no other vitiating factor.

Where a new client wishes to instruct you in a power of attorney matter the same principles apply and solicitors will need to exercise their own judgment as to whether or not it is appropriate to conduct the entire piece of business using video technology. It is not to say that it would not be compliant with the relevant legislation. However, the professional obligations to ascertain relevant capacity, and to ensure that there is no undue influence or other vitiating factor, can prove to be more difficult when no physical meeting takes place. It is for those reasons that caution should be exercised in proceeding in this way for new clients.

Please note that this methodology has been followed, with the knowledge and approval of the Public Guardian, well prior to the current situation, where a power of attorney document has been executed overseas.

Our current Guidance on Continuing and Welfare Power of Attorney and Vulnerable Client Guidance should be referred to and followed as necessary. We would mention that, prior to the current situation, review and updating of both of those Guidance documents was underway and is continuing.

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