Scottish and English powers of attorney compared
Potential cases of abuse could be considerably lessened if English LPAs adopted some of the differences of the Scottish system, says Ann Stanyer
The 2015 revision to the format and procedure for creating and executing English lasting powers of attorney (LPAs) has brought into focus the differences between the English and Scottish systems.
There is much to be said for the Scottish form, which arguably provides greater protection for clients. A brief rÃ©sumÃ© of the major differences shows how English LPAs could be improved so as to provide greater security and peace of mind to English clients and reduce the instances of abuse
of the elderly.Combined form
In Scotland there are three types of power of attorney:
a continuing power of attorney, which confers property or financial powers only; a welfare power of attorney, which confers welfare powers; and
a combined power of attorney with all of the powers of the other two, in one document. These are created by individual solicitors who advise on the form suitable for the client, create the document, and advise on its execution.
In England, by contrast, there are just two types of form: one for financial decisions and one for health and welfare. Donors are encouraged by the Office of the Public Guardian (OPG) to prepare the form themselves.
In Scotland, the need to take legal advice generally means more thought goes into the creation of the LPA and ensures the resulting forms reflect the client's particular needs.
In England, revised forms
of LPA were introduced by the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment) Regulations 2015, designed to be shorter and simpler to understand, and more user-friendly generally. The government consulted on introducing a combined form
of LPA leading up to the 2015 revision, but a majority of respondents felt that combining the two forms would put undue pressure on a donor to give health and welfare powers against their will.
It is difficult to see how this would be the case if two separate forms of LPA were also available. Having a combined form saves the donor the time, money, and complication of creating two forms, and for those who want it, provides maximum flexibility and peace of mind that most eventualities will be covered.Donor's capacity
In both countries there are provisions for the donor's capacity to be certified by another person. Under the new English LPA forms introduced in 2015, the certificate provider can be someone who has known the donor personally
for at least two years, such as
a friend or colleague, or it can
be a person with relevant professional skills (e.g. a GP, healthcare professional, or solicitor).
There is no longer any requirement for the certificate provider to state in what capacity they are acting; they now simply have to give their title, name, and address. It is difficult to see how the OPG can verify whether the certificate provider is acting in the correct capacity. It has also been shown that lay certificate providers find it difficult to understand their role.
In Scotland, by contrast, there is a requirement for a solicitor, GP, or advocate to provide a certificate in a prescribed form confirming that they interviewed the granter immediately before signing; they are satisfied that the granter understood the nature and extent of the powers they are granting; and they have no reason to believe the granter was acting under undue influence. It is not possible for a lay person to certify the donor's capacity, as is permitted under English law.
This is a main standout difference for practitioners. Bearing in mind that the OPG has removed the requirement for notice to be given to family members and removed the need for a second certificate provider, and the seemingly unstoppable drive towards a digital LPA system, the Scottish example shows how the system can operate and provide greater protection for vulnerable adults. In England, some 500,000 LPAs are registered each year, and there is concern that this bulk registration of LPAs in
the current form is storing up problems for the future, leading to cases of the financial abuse against which the system
was originally designed to safeguard. In my view,
potential cases of abuse could be considerably lessened if English LPAs adopted some of the differences of the Scottish system. SJ