Powers of Attorney and Undue Influence

1 May 2012

For many, granting a Power of Attorney can lift the burden of worry that may accompany older age or illness. It means you can be confident your affairs are to be looked after when you no longer can. Most people will freely chose who they wish to undertake this important role and trust them completely. Unfortunately, the system can fail and can lead to misuse of these powers.

The subject of Powers of Attorney has recently been in the news following a case that highlighted the potential for abuse of Powers under the current guidelines. Both the Law Society of Scotland and the Mental Welfare Commission will collaborate in creating new guidelines for practitioners.
The case in question involved a married couple with mild learning difficulties who had granted power of attorney to a relative, who then ran up over £10,000 worth of debt in their name. The Mental Welfare Commission has produced a report on the case. The Local Authority and the Office of the Public Guardian had looked into the issue but ultimately left the couple to revoke the power themselves. Both a GP and their solicitor believed they were capable of granting the Power. The person designated as their Power of Attorney had been controlling and restricted their food and clothing, as well as when they were allowed to leave the house. It was discovered that whilst the couple may have at the time been capable of granting the Power, they may have not fully understood what it involved, or what the agreement said as their reading skills were limited. The role of the Solicitor was also in question as they appeared to act for the person being granted the Powers, rather than the couple themselves. In fact it was said that the couple had been called to the meeting with the GP and Solicitor with no notice as to why they were there. The Welfare Commission considered that the role of Undue Influence had not been taken into account.
Out of the report, the Commission made a number of recommendations in order to create safeguards for the future. This included guidance to the Law Society of Scotland to update existing guidance for solicitors in respect of powers of attorney to take account of the changes in the Adults with Incapacity (Scotland) Act 2000. Particular care should be taken over the question of capacity and undue influence.  It is clear that it will be extremely important for Solicitors to be vigilant when granting Powers to someone, and must ensure the person who is granting must be informed and understand what they are agreeing to.
If you are seeking advice on Powers of Attorney, or you would like to discuss making one then please contact Brian Inkster on 0141 229 2880 or send Brian an e-mail.


Bookmark and Share



blog comments powered by Disqus

Related Information


Internal Pages