Analysis
On 9 May 2014, the Adult granted a continuing and welfare power of attorney in favour of her son and one of her daughters (who consented to be attorneys) (the First PoA). A statutory certificate confirming the Adult’s capacity to grant the First PoA was signed by her solicitor. The First PoA was registered by the Office for the Public Guardian (OPG) on 21 June 2014.
On 17 November 2020, a consultant psychiatrist diagnosed the Adult with early Alzheimer’s Dementia, and assessed the Adult as having a short-term memory of 5-10 minutes. The psychiatrist gave evidence that the Adult was unlikely to have had capacity to grant any power of attorney as at November 2020.
On 30 September 2021, at the Adult’s solicitors’ request, a general practitioner (who had not met the Adult before) carried out a capacity assessment of the Adult and concluded that the Adult had capacity to revoke the First PoA and grant a new one.
On 7 October 2021, the Adult granted a second continuing and welfare power of attorney (the Second PoA) in favour of all three of the Adult’s children. The Adult also signed a revocation of the First PoA. The Adult’s solicitor again signed the statutory certificate confirming the Adult’s capacity to grant the Second PoA.
The Adult’s solicitor submitted the Second PoA using the OPG’s Electronic Power of Attorney Registration (EPOAR) website. The two attorneys under the First PoA had not signed the form confirming they were willing to act as attorneys under the Second PoA. The solicitor had thought that this was not required (and had advised the Adult to this effect). The solicitor accepted that this was an error.
On 20 October 2021, concerns were raised as to the Adult’s capacity at a multidisciplinary meeting of the Midlothian Dementia Clinic. On 17 November 2021, a consultant psychiatrist carried out a capacity assessment and concluded that the Adult did not have capacity to make any decisions about her welfare. The psychiatrist’s assessment was more detailed than that of the general practitioner and the psychiatrist had additional information about the family dynamics and how the Adult was in the community from the Community Health Team. The general practitioner’s evidence was that he would defer to the psychiatrist’s opinion since the latter had more experience and had carried out a more detailed assessment.
The consultant psychiatrist informed the Adult’s solicitor of this. The solicitor, however, was not interested in the new assessment as she already held a capacity assessment from the general practitioner. The psychiatrist therefore contacted both the OPG and the general practitioner. The general practitioner responded by informing the Adult’s solicitor that the general practitioner was now uncertain about their previous conclusion and wished to retract their 30 September decision regarding the Adult’s capacity.
On 17 November 2021, the Adult’s solicitor submitted an expedited registration request form to the OPG.
On 24 November 2021, the OPG registered the Second PoA notwithstanding that the existing attorneys under the First PoA had not consented to act as attorneys.
On 30 November 2021, the Adult’s daughter (who had been one of the attorneys under the First PoA) emailed the OPG challenging the capacity of the Adult to have granted the Second PoA. The Public Guardian decided to remit the matter to the court for a direction as to what to do.
Held:
The registration of the Second PoA did not comply with s19(2) of the Adults with Incapacity (Scotland) Act 2000 because two of the attorneys had not consented to act as attorneys. The Public Guardian was directed to delete the Second PoA from the register.
JUDGMENT SHERIFF ROBERT D M FIFE: Introduction [1] This application concerns A, ‘the Adult’ and her capacity to revoke a 2014 Power of Attorney and grant a new Power of Attorney in 2021. [2] The sheriff, having resumed consideration of the cause, finds the following facts to be admitted or proved. Findings in fact [3] …Continue reading "Re A [2023] WTLR 1195"