In today's uncertain times, more people, of all ages, are committing to putting a Power of Attorney in place. This provides confidence that should they become mentally incapacitated, someone they know and trust will manage their personal and financial affairs on their behalf.
However, circumstances change over time, which can lead to either a continuing or welfare Power of Attorney terminating. The Adults with Incapacity (Scotland) Act (AWISA) 2000 sets out the rules and circumstances regarding the termination of a Power of Attorney under Scottish law.
It is important to note that a registered Power of Attorney will continue until a 'terminating event' such as one listed below, occurs.
A written notice is required to revoke a Power of Attorney by the Granter (the person who creates the document). Furthermore, a certificate of capacity must be completed by a solicitor who is registered to practice law in Scotland, or by a practising member of the Faculty of Advocates or a licensed or registered medical practitioner to state that:
Once all the requirements are fulfilled, the revocation will be sent to the Office of the Public Guardian for registration.
The Court may revoke some or all of the powers granted to an Attorney or revoke the appointment altogether if someone claiming an interest in the property and financial affairs or personal welfare of the Granter proves that the Attorney is incapable of safeguarding or promoting the Granter's interests concerning the matter at hand, and revocation is required ensure the Granter's safety and welfare.
Section 20 of the AWISA 2000 gives the Sheriff authority to revoke a Power of Attorney. This authority is rarely exercised and only in cases where there has been a severe breach of duty by an Attorney. Instead, a Sheriff is more likely to invoke alternative remedies, such as ordering an Attorney to be supervised.
Should the Court appoint a welfare or financial Guardian for the Granter, the authority of a continuing or welfare Attorney will cease.
If the Attorney is unaware of the appointment of a Guardian and continues to exercise their powers granted under the Power of Attorney, they will not be liable. However, if they were aware of the Guardian appointment, the opposite is true.
Spouses/civil partners are often appointed as Attorneys. Should the relationship break down, leading to legal separation, divorce or dissolution (in the case of civil partnerships), unless the document provides otherwise, the Power of Attorney will terminate. Your solicitor will talk to you, at the time of creating the document, about naming alternatives to your spouse/civil partner to ensure the Power of Attorney continues.
Should the Granter or an Attorney become bankrupt, a continuing Power of Attorney will terminate. However, bankruptcy will not affect the continuation of a welfare Power of Attorney.
Both continuing and welfare Power of Attorney's end upon the Granter's death. Should the Granter die, the Public Guardian must be notified.
The death of an Attorney will not terminate the Power of Attorney if there are other joint Attorneys listed in the document or substitute Attorneys that are willing to take up the role.
Under section 23 of the AWISA 2000, an Attorney who wants to resign must give written notice to:
If there is a substitute Attorney or a remaining joint Attorney, the resignation will take effect on the date the Public Guardian receives notice, as long as there is written evidence to show the other Attorney is willing to act. If there is no other Attorney, there is a 28-day notice period before resignation can take effect.
If 2020 has taught us anything, it is that lives can change in an instant, in ways that you may never have imagined. You may believe that you have a valid Power of Attorney safely in place, only to find a situation which has rendered it inoperative. Accordingly, it is important to review your Power of Attorney periodically to ensure that it is still effective and accords with your wishes.
An experienced solicitor will be able to advise you of situations that could result in your Power of Attorney terminating through circumstances other than your express revocation. They will put measures in place to ensure the document remains operative and your best interests are protected. Should you decide to revoke your Power of Attorney, a private client solicitor will ensure you understand the legal consequences of doing so and then see that all the requirements under the AWISA 2000 are satisfied.
If you have any questions about the issues covered here, or if you would like to discuss a Power of Attorney, or any Estate Planning, Will or Trusts matter with our specialist lawyers, please fill in our contact form or call 0131 341 3741 .
Murray Beith Murray was established in 1849, as advisors for generations of clients, committed to our values of integrity, expertise and trust. This aim and these values continue to this day as does our commitment to be here when you need us.