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Court Of Session Confirms Validity Of CPA Wording

Court Of Session Confirms Validity Of CPA Wording

The Court of Session has clarified the law regarding the wording of Continuing Powers of Attorney (CPA) after months of uncertainty for the public and the legal profession, following a controversial Sheriff Court decision.

In a special case referred by the office of the Public Guardian (Scotland) (OPG), the Inner House determined that the standard form of wording recommended by the OPG for Continuing Powers of Attorney (CPA) is valid.

The decision clarifies the law following Sheriff Baird’s controversial decision in Application for Guardianship in respect of NW, 13 May 2014. In that case, Sheriff Baird criticised the wording of a CPA in favour of the Clydesdale Bank which adopted the standard form. The standard wording is as follows:

“I appoint x to be my continuing attorney (“my attorney”) in terms of section 15 of the Adults with Incapacity (Scotland) Act 2000” (the Act). (A “continuing attorney” is a person on whom a continuing Power of Attorney is conferred in terms of Section 15(2) of the Act.)

Sheriff Baird was of the view that this statement failed to clearly set out the information required by Section 15(3) (b) of the Act.  He commented that the wording failed to make a clear statement that the granter intended the power to be a continuing power. He also commented that the CPA, in that particular case, failed to include a statement that the granter had considered how his incapacity was to be determined in line with the provisions of Section 15(3) (ba).

The plot thickened in a further Sheriff court case determined after NW. In B and G v H, 7 August 2014, Sheriff Murray considered the same issues regarding the standard wording as the NW case and determined that he did not agree with the line taken in NW and considered the standard wording to be valid.

Whilst, neither of these decisions are binding on other courts, the impact was the creation of uncertainty and confusion for the public, the legal sector and industry professionals as to whether Attorneys appointed under CPAs and Continuing and Welfare Powers of Attorney which contained the standard wording had authority to validly act on behalf of the granter. This may have had serious transactional and care implications in some cases.

Accordingly, the clarity brought by the Inner House has been welcomed. Whilst a written judgement, which will detail the Court’s full reasoning, will follow shortly, a synopsis of the decision by the OPG can be found on their website

The reasons appear to be twofold:

  1. The standard wording was deemed to contain a statement that the power granted was to be a continuing power;
  2. The CPA in the special case did not require a statement on the determination of capacity as the CPA was registered in 2004, prior to the provision under section 15(3) (ba) coming into force. 

Significantly, in terms of the second point, the court observed that the CPA in the special case would still be valid if granted today, in the absence of a statement as to determination of incapacity, as a CPA takes effect on registration and not on incapacity. 

If you have any queries on the decision or any related matter then please contact our Private Capital team who will be happy to assist.

Katrina Sey
Solicitor

LChalmers