Powers of Attorney during lockdown

Ian Macdonald

Published by
Ian Macdonald

30th April 2020

We at Wright, Johnston & Mackenzie LLP are here to help our clients in every way we can. We believe that it is important, especially during this current situation, to ensure access to legal services is maintained. One of the concerns which many people have at the moment is how their finances would be looked after and decisions about care would be made if they became unable to do so themselves – whether temporarily or permanently - through illness or accident.

The document which allows you to do this is a Power of Attorney (POA) which can cover financial or welfare matters - usually both. The best people to appoint as your attorneys are normally family members but if none are readily available or if appointing family members might cause difficulties, you can appoint friends or professional advisers including members of our team here at WJM.

It is essential that we “meet” with you to discuss your wishes for a POA. Since a lockdown has been implemented across Scotland, the normal practice of meeting clients in person to conduct the necessary interviews is difficult if not impossible. We have therefore been looking at ways to enable us to fulfil our legal obligations and assist you with granting a fully valid Power of Attorney when normal protocol cannot be followed.

If we have not dealt with you before, it will be essential that we meet with you by video to confirm who you are, see suitable ID and discuss your wishes for a POA. We can then prepare your POA and send it to you by either post or email.

In terms of the Adults with Incapacity (Scotland) Act 2000, a solicitor must then certify the capacity the granter of a Power of Attorney, by way of interview, immediately prior them signing the document. This too is best carried out by video although if we have dealt with you before an interview by phone may be sufficient.

Your signature on the POA should be witnessed. If one of our solicitors is interviewing you by video to confirm your capacity, they can also sign as the witness to your signature when the POA is returned to us. If the interview is by phone, an independent person (not any of the attorneys you are appointing) who sees you sign or to whom you confirm your signature can sign as witness while still observing the necessary social distancing.

The original signed document should then be promptly sent to us in the post. A photocopy or scanned copy will not suffice for this purpose, since we must have the principal document before we can register it with the Office of the Public Guardian. Registration is essential before the POA can be activated. Before we register the POA, we will contact the attorneys you have appointed to confirm in writing their agreement to being appointed.

If you wish to discuss granting a Power of Attorney, or have any questions regarding the process set out above, our Private Client team would be delighted to help you. Please call 0141 248 3434 or email privateclient@wjm.co.uk

The information contained in this newsletter is for general guidance only and represents our understanding of relevant law and practice as at April 2020. Wright, Johnston & Mackenzie LLP cannot be held responsible for any action taken or not taken in reliance upon the contents. Specific advice should be taken on any individual matter. Transmissions to or from our email system and calls to or from our offices may be monitored and/or recorded for regulatory purposes. Authorised and regulated by the Financial Conduct Authority. Registered office: 302 St Vincent Street, Glasgow, G2 5RZ. A limited liability partnership registered in Scotland, number SO 300336.