Christmas is hailed as a family time. Advertisers are tuned into this. In its Christmas advertising campaign this year Tesco aimed at portraying the reality of Christmas for families, rather than a “perfect airbrushed one”. It focused on one family, using cinefilm and videocam footage, to show their experience of Christmas over the past 50 years. Such (supposedly) realistic portrayals of the family Christmas usually include an elderly relation not quite keeping up with the frenetic antics of the young.
The Glasgow City Council (and others) Power of Attorney campaign
With more altruistic motivation Glasgow City Council (and other collaborators) also chose Christmas as the time to promote awareness of granting “Powers of Attorney”. The slogan for this campaign is “start the conversation” – aimed in particular at encouraging the different generations gathered at Christmas to speak about “Powers of Attorney”. This can be a delicate subject. It generally involves contemplating an older relation’s loss of capacity to some degree or other. This is unlikely to be a welcome topic. But this is what the Glasgow City Council website has to say on the matter:
“Did you know that if you become unable to make decisions for yourself – because of illness or injury for example – no-one else can make those decisions for you, unless you have given them legal powers to do so?
Everyone is being encouraged to “Start the Conversation” with their loved ones as the first step to giving Power of Attorney to someone they trust.
Power of Attorney can cover your financial affairs (e.g. managing your bank account) and your welfare (e.g. deciding where you will live if you are no longer able to decide for yourself).”
The start the conversation website (www.poastarttheconversation.org.uk) acknowledges that this may not be a very Christmassy conversational gambit:
“Of course, talking about Power of Attorney (POA) is not everyone’s idea of an exciting conversation.
But it could be the most important conversation you ever have.
Think. If ill health or an accident means you can’t make decisions for yourself, who do you want to make them for you?”
This is a laudable initiative. If a Power of Attorney is not in place and someone loses capacity to make their own decisions then this may involve hassle and expense at what is, in any case, a stressful time. This Note however is not an outline of what a Power of Attorney is and how it works (although we would be happy to advise on that if you wish). Instead, this Note touches on a different but related aspect of the matter. It considers aspects of the solicitor’s role in relation to taking instructions for the granting of a Power of Attorney.
The solicitor’s role
• As the label “Power of Attorney” suggests such documents usually involve the granter conferring significant powers on other(s) to act on their behalf. The Law Society has recently issued new guidance for solicitors in relation to Powers of Attorney and also new guidance in relation to what are referred to as “vulnerable clients”. These two sets of guidance may often apply at the same time.
• As the “vulnerable clients” guidance says the term “vulnerable” is used as a convenient comprehensive term, not limited to any definition of that term for any other purpose. The guidance applies:
“whenever a client or prospective client may lack full capacity to instruct a solicitor, or to instruct and validly carry through the contemplated act or transaction, or may be subject to undue influence or other factors which might vitiate that act or transaction.”
• Of course, Powers of Attorney are often granted when it is clear that there is no question of the client (or prospective client) being what is termed “vulnerable”. But sometimes things are not so clear-cut and may easily become a grey area for the solicitor. This can be illustrated by reference to the approach to such matters in England in the context of wills. There, judicial advice has been given in relation to making wills as follows:
“in the case of an aged testator or a testator who has lately suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and findings.”
• That English judicial advice has been adopted in England and is known as “the golden rule”. Such things are not so rigid here either in relation to the making of wills – or the making of a Power of Attorney. But it indicates the sort of matters a solicitor may need to take into account.
• A related matter is whether instructions for a Power of Attorney (or a will) may be taken from a “vulnerable” client (or prospective client) where the appointee (or executor/beneficiary) is also present when the instructions are given. What could be more natural for an aged parent planning to make a power of attorney (or will) to be accompanied to the solicitor’s office by a son or daughter? Nevertheless, there could be a risk that such a son or daughter had his or her own interests in view.
• It can sometimes be difficult to assess whether there is a risk of that. This is particularly so where the solicitor has no prior personal knowledge of the “vulnerable” client (or prospective client). Hence the Law Society Guidance saying:
“Where there is a possibility of vulnerability, the client should be seen alone except where the client reasonably prefers someone to give support, or assist communication, in which case such third party should if at all possible be neutral in relation to the matter in hand.”
• Usually a son or daughter will not be wholly neutral. It is likely that an accompanying son or daughter may be the very person who is to be appointed attorney (or executor/beneficiary under a will). So, particularly in the light of this new Law Society Guidance, solicitors may occasionally be constrained to adopt what could appear to be a somewhat over-cautious approach in these matters.
Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Neil Mackenzie: firstname.lastname@example.org