The Mental Welfare Commission for Scotland is criticising the current arrangements for the granting of Powers of Attorney in Scotland.
This was in response to a case involving a couple who granted a Power and the Attorney subsequently kept them short of money and clothing.
The Commission’s conclusion from this is that there is something inherently wrong with the way that Powers of Attorney are granted in Scotland and are suggesting that there should be stricter codes of practice for solicitors and doctors who have to certify that a person is of sound mind at the time that they grant the Power of Attorney.
My understanding is that they wish us to become closer to the English system. More of that later.
The statistics are that there are about 45,000 Powers of Attorney granted each year and the Office of the Public Guardian who supervises Attorneys have reports of abuse running at only about 200 a year. My understanding is that most of these are resolved, amicably, by the Attorneys concerned as they are misunderstandings about their duties.
The Commission appears to have only one investigation into such a case, I believe.
What does this tell you? It tells you that the system works very well.
Why? It is because the publicity given to this issue by the Commission is in danger of causing a reaction to the effect that people will not grant Powers of Attorney. When you consider that the alternative is Court Supervision by way of a Guardianship Order (very expensive, very slow and very restrictive), if people are deterred from using this very important tool, the consequences for society will be significant.
The safeguards are there. Apart from the fact that a certificate has to be signed by a doctor, solicitor advocate to the effect that the person in front of them is mentally capable of understanding what they are doing (and, if that professional is unsure, they can consult, for instance, a Consultant), the mechanism is there for the person who granted the power to revoke it.
Furthermore, the mechanism is there for a third party to complain to the Office of the Public Guardian (OPG) if they hear of such abuse.
Whilst the OPG only investigate cases relating to financial they do act as a one stop shop and they will refer welfare issues to the appropriate Local Authority.
The old adage involving sledgehammers and nuts comes to mind.
The more red tape you apply to issues like this, the more expensive it becomes. My understanding is that it costs £500- £750 plus VAT for a power of attorney in England. In addition, the office of the public Guardian in England charge £170 registering it. Compare this with the average cost in Scotland, which is more like £250 plus VAT and £70 registration. You can get it online for £99.
Do we want to deter people from granting Powers of Attorney? I am afraid that hard cases make bad law. I am very sorry for the couple concerned. They had a hard time but the point is that the system worked. Someone complained about their treatment and they revoked their Power of Attorney.
The Scottish system is flexible, inexpensive and, more to the point, works. If it ain’t broke, don’t fix it!
