AW39/14 [2014] SC GLA 1

Opinion of John A Baird, Esq, Advocate

Sheriff of Glasgow and Strathkelvin at Glasgow

Valid Creation of Continuing Power of Attorney

Application for Guardianship in respect of NW

• The issues raised in this case illustrate the importance of adherence to the prescribed procedures for the valid creation of a continuing Power of Attorney, the need for proper independent legal advice being taken prior to any aspect of estate planning, and once again demonstrate the vision of the drafters of the Adults with Incapacity (Scotland) Act 2000, which provides the answers to those issues.

Background

• An application was received at this court to grant orders for both welfare and financial guardianship in respect of an adult, NW, who is a widow, aged 74. She had begun to shows the signs of dementia in 2012 and was diagnosed as suffering from Alzheimers by the end of 2013. Although still living on her own at home, that arrangement may not be sustainable for much longer. The application was made by her niece and cousin, who are her next of kin. They have in fact been operating for the benefit of the adult since 2012, and have taken to do with organising her care ever since. They have also been attempting to assist with her finances and in organising payments of regular bills, etc, for some time, but were clearly of the view that the adult had now lost capacity to authorise that and it required to be put on a formal basis.
• For the avoidance of doubt, the adult is an adult with incapacity as defined in the Act, and the two applicants are suitable for appointment as guardians. Clearly, major decisions as to welfare are pending, and the adult's estate is substantial, so will require to be managed. The general principles of the Act are therefore satisfied and in the absence of any objection, there would have been no difficulty in approving the applicants as suitable and granting the orders sought.
• In the course of the original application, the applicants averred that the adult has never granted a Power of Attorney (the Practice Note for this jurisdiction, issued by the then Sheriff Principal on 3 July 2006 makes it mandatory for applicants to aver whether any such Power is known to exist), and they also averred that they had discovered that in 2011, the adult had transferred the title of her home, which she had owned, to the Trustees of a Discretionary Trust set up at that time. The applicants had not been able to discover much about this, and did not even know the identity of the trustees. They undertook to (and sought specific powers entitling them to) investigate the circumstances of that transaction.
• When the application was warranted and intimated by the applicants' solicitors to the Public Guardian, in accordance with the general rules, the Office of the Public Guardian drew to their attention that a purported Continuing Power of Attorney already existed, granted by the adult in favour of the Clydesdale Bank PLC ("the Bank") and registered on 18 August 2008. This information came as a surprise to the applicants. Accordingly, they then sought a warrant for intimation on the Bank and also sought to amend their application by seeking an additional crave under section 20(2)(e)(ii) of the Act, asking the court to revoke that appointment. They averred in support of that crave that they were not aware that the Bank had ever exercised those powers and that the Bank was not currently so doing. In fact, their belief was correct, and the Bank has never entered into management of the adult's affairs in any way.

The Pleadings

• In response to the intimation, the Bank entered the process and lodged answers, seeking to oppose the crave to revoke the Power in their favour, and making it clear that since they had already been appointed, they now fully intended to enter into management of the adult's financial affairs, as authorised by her in 2008. Again for the avoidance of doubt, the Bank is plainly equipped to carry out such a task and, if this had been a competing application for appointment under the Act (which it is not), the Bank would, of course, have been regarded as suitable for appointment. In that scenario, and in the one presented here, the court would have been required to make a choice between either of competing, but suitable, applicants, or, as here, applicants who asked the court to revoke an existing appointment in favour of other suitable appointees.
• It is important in that regard to note that the applicants had in their application set out reasonably detailed averments about the adult's social and financial circumstances, and the extent to which they had become involved in caring for her and for her finances. When the Bank lodged its answers, they contained admissions about the adult's current mental health difficulties, based on their, understandable, acceptance of the medical position put forward. In fact, it transpired that the Bank had not made any independent enquiry about the medical position but had no desire to challenge it. Strictly speaking, therefore, those passages in their answers which "admit" certain statements of fact ought to read that those statements of fact are "believed to be true", as opposed to "admitted", but the reasoning behind the Bank's stance is understandable and acceptable. There follows five full A4 pages of answers in which the Bank records that it "does not know nor admit" most of the remaining detail which had been set out by the applicants as to themselves and as to the adult and her circumstances. I am not criticising the Bank for taking that position; it is obviously correct and responsible pleading, but the significance of it is that despite holding the powers granted in 2008, the Bank actually knows very little about the adult or her affairs, whereas the applicants do know these details, and have been acting in furtherance of her interests, albeit informally, for some time.
• The Bank of course did not contest the applicants' attempt to be appointed welfare guardians, and the issue narrowed to an apparent competition between the applicants, seeking appointment as financial guardians, and seeking, in gremio of that, to revoke the existing Power of Attorney, on the one hand, and the Bank, seeking to persuade the court not to revoke the existing Power, which it now sought to exercise, and to refuse to appoint the applicants as financial guardians, on the other. Both parties lodged detailed written submissions in support of their respective positions.
• In fact, a question arises as to whether, if I had decided in favour of the applicants as opposed to the Bank, it was necessary formally to revoke the existing Power. Section 24(2) of the Act provides that "The authority of a continuing or welfare attorney in relation to any matter shall come to an end on the appointment of a guardian with powers relating to that matter". Assuming therefore that there had been a valid existing continuing Power in favour of the Bank, if I had now made an appointment for guardianship in favour of the applicants which contained all of the powers already contained in the Power, that would automatically bring to an end the authority of the continuing attorney to act, without the need positively to revoke the Power itself. That would mean that it was not strictly necessary to amend the application to include the new crave, though clearly averments relating to the matter would have been required.

The Hearing and the Validity of the Power of Attorney

• However, when I came to preside over this hearing, I turned firstly to consider and scrutinise the terms of the purported Continuing Power of Attorney. After all, if there was no valid existing Power, there was no competing argument in its favour.
• It has been competent for centuries for persons of full age and capacity to make provision authorising some other person, or organisation, to act in their stead if they are unable to do so themselves. Historically, they were used most often by those whose business or employment took them overseas, and they were desirous of ensuring that their affairs were properly regulated in their absence. In such situations it was usual for them to resume personal control of their affairs on their return, hence the need for the granters to be able, if still of full capacity, to revoke the powers originally granted.
• However, with the coming into effect of the Act, it was recognised that it would be extremely useful for all adults, generally speaking, for the purpose of ordering their affairs properly, to grant Powers of Attorney in favour of a suitable appointee, but which would additionally deal with the situation where the granter lost capacity so to act, which includes losing capacity to revoke. The Act therefore provides that a Power of Attorney granted in accordance with the provisions of section 15 would continue in force, notwithstanding any rule of law to the contrary, even after the granter had become incapable in relation to any matter to which the Power relates. The statutory provision which regulates this matter is section 15(1) of the Act, and the importance of it is that, combined with section 18 of the Act, an attempt to create such a "continuing" Power must comply with the provisions of section 15. If it does not, it is of no effect. Section 18 says in terms that "[A] power of attorney granted after the commencement of this Act which is not granted in accordance with section 15 [or 16] shall have no effect during any period when the granter is incapable in relation to decisions about the matter to which the power relates". (Section 16 regulates the creation of welfare Powers of Attorney, but no such Power was created in this case).
• Section 15(2) goes on to provided that in the Act, a power of attorney granted under subsection (1) is referred to as a "continuing power of attorney" and a person on whom such power is conferred is referred to as a "continuing attorney". Pausing there, it is important to note that the Act refers to the appointee as a "continuing attorney" and not just as an "attorney" and that compliance with all of the provisions of section 15 is essential in order to ensure validity.
• The next subsection is critical for present purposes. Section 15(3)(a), (b) and (c) were part of the original wording of the Act, in force since April 2002. Section 15(3)(ba), and certain minor further amendments to the section were substituted by the Adult Support and Protection (Scotland) Act 2007, but S15(3)(ba) came into effect on 5 October 2007 (SSI 2007/334), so all of these important provisions were well in place long before the document in question here was signed by the adult on 10 July 2008.

The Purported Continuing Power of Attorney

• So, what does the document, signed by the adult on 10 July 2008 and registered with the Office of the Public Guardian on 18 August 2008 actually say, and how did it come into being?
• The document begins with a clause headed "Appointment" and is in the following terms (I have deliberately omitted the name and address of the granter):- "I, [name], residing at [address] appoint Clydesdale Bank Public Limited Company, having its registered office at Thirty Saint Vincent Place, Glasgow to be my continuing Attorney ("my Attorney") in terms of section 15 of the Adults with Incapacity (Scotland) Act 2000 (which Act and any subsequent amendment of that is referred to as the "Act"), declaring that the Bank may act as such attorney on the Bank's Terms and Conditions provided in the Deed of Declaration by the Bank dated Twenty-seventh day of June Nineteen Hundred and Eighty-nine (including what is therein provided in regard of the right of the bank to remuneration) as if such Terms and Conditions were herein expressed".
• Ignoring for the moment the reference to the Deed of Conditions registered by the Bank, what that clause says, in short, is "I appoint Clydesdale Bank PLC to be my continuing Attorney ("my Attorney") in terms of section 15 of the Adults with Incapacity (Scotland) Act 2000 and as it may be amended".
• There is no further reference, anywhere in the document, to the issue of subsequent incapacity or to the Act of 2000.
• What follows is a clause conveying general powers to manage the granter's whole affairs, followed by a clause in familiar terms setting out a list of 17 specific powers conveyed, including the usual powers to operate accounts, authorise expenditure, dispose of property, administer heritable property and borrow or lend, raise judicial proceedings, attend at company meetings, and the like. The only clause which relates specifically to the attorney appointed is the last one, 3.17, which entitles the Clydesdale Bank to act as the granter's bankers and to make the usual charge for so acting, and to charge their usual remuneration for acting as attorney. The final clauses, 4 and 5, state that documents granted by the Attorney are to be as valid as if granted by the granter, and that the Power subsists until recalled by a writing signed by the granter or until my death.
• After that is the testing clause, which contains only of the signature of the granter, and the signature of a witness, whose address is given, and which witness (note; not the adult) has inserted the date and place of signing. There is also attached a certificate under section 15(3)(c) of the Act in prescribed form, certifying that the signatory of that document interviewed the granter immediately before subscription, and that she, i.e. the signatory of the certificate, was satisfied that the granter understood its nature and effect because of her own knowledge of the granter, and that she had no reason to believe that the granter was acting under undue influence or that any other factor vitiated the granting. That certificate therefore complies with the requirements of section 15(3)(c)(i), (ii), and (iii). The document is signed by a person who states that she is a solicitor, and her business address is given. She is the same person whose name is given as the witness to the signing of the Power itself.
• The first problem with that document is that it makes no reference to the requirement of section 15(3)(b) of the Act. The second problem is that it makes no reference to the requirement of section 15(3)(ba) of the Act.

Section 15(3)(b)

• Section 15(3) has 4 paragraphs, all of which contain mandatory requirements. It provides that "A continuing power of attorney shall be valid only [my emphasis] if it is expressed in a document which - (a) is subscribed by the granter; (b) incorporates a statement which clearly expresses the granter's intention that the power be a continuing power; (ba) where the continuing power of attorney is exercisable only if the granter is determined to be incapable in relation to decisions about the matter to which the power relates, states that the granter has considered how such a determination may be made; (c) incorporates a certificate in the prescribed form by a practising solicitor or by a member of another prescribed class that - [and there then appear the requirements I have already described in para 20 above]".
• I have already dealt with what is required by the terms of section 15(3)(c), as set out in para 20, and the document does therefore incorporate a certificate as required by that provision. The requirement of section 15(3)(a) for subscription was satisfied in this case. That leaves then requirements of section 15(3)(b) and S15(3)(ba), and they are requirements, because the preamble to section 15 states that the Power of Attorney is valid only if it is expressed in a document which complies with the subsequent three paragraphs.
• Section 15(3)(b) says what it says. The provision is not there for no reason. It cannot be ignored. The requirements of paragraphs (a) and (c) cannot be ignored, so why should the requirements of paragraph (b) be ignored? It says that the document must incorporate a statement which clearly expresses the granter's intention that the power be a continuing power. The document in question here contains no such specific statement. It is clearly intended by the Act that such a statement should be present as a substantive part of the document. If it was not necessary to incorporate in the document a specific statement which clearly expressed the granter's intention that the Power be a continuing Power, then there would be no need for section 15(3)(b).
• The writer has seen very many Powers of Attorney created since the passing of the Act. There have been other cases where, for example, there is indeed a valid continuing Power which has been produced, but where the attorneys have discovered that it omits to give them a particular specific power which they now seek to exercise, and they have required to come to court to seek authority from the court (either by intervention order or a guardianship order limited to that specific additional power) to take that desired action. The writer can therefore state with certainty that it is routine to find a specific clause in the document which contains words along the lines of "The granter hereby declares that she intends that this document and the powers contained therein shall subsist and continue to have effect, notwithstanding that I shall have lost capacity in relation to the matters contained herein". Other versions I have seen contain a fuller clause which states "Generally to do everything with regard to my estate and affairs which I could have done myself, without limitation by reason of anything herein contained or any incapacity on my part, whether mental or physical, occurring after the date of the granting of these presents, it being my intention that the powers shall subsist and remain in full force and effect notwithstanding incapacity, as defined by the Act, on my part". Any clause along the lines of those just quoted clearly represents the incorporation into the document of a statement which clearly expresses the granter's intention that the power be a continuing power. There is no such clause in the document in question here.
• The only reference in the document itself to the Act at all which is to be found is in the Appointment clause I have quoted, which refers to the Bank being appointed to be the granter's continuing Attorney in terms of section 15 of the Act, but in my clear view, that reference is quite insufficient to create a valid continuing power of attorney, since it does not comply with the requirements of section 15, and specifically section 15(3)(b). The document, manifestly, does not incorporate a statement which clearly expresses the granter's intention that the power be a continuing power. As a result, section 18 applies and provides that because it has not been granted in accordance with section 15, the Power has no effect during any period when the granter is incapable in relation to decisions about the matter to which the Power of Attorney relates. The granter here is now incapable in relation to all these matters and so the document here, purporting to create a continuing Power of Attorney, is not valid and has now no, and no continuing, effect.
• In argument on the point before me, the solicitor for the Bank submitted that the reference in the Appointment clause to the Bank being appointed as a continuing Attorney in terms of section 15 of the Act was sufficient to comply with the requirement of section 15. I simply cannot accept that argument, for the reasons already stated, and those reasons are amplified when one comes to consider the point about section 15(3)(ba), to which I will return. It was admitted in argument that section 15(3)(c) contains a mandatory requirement (for completion of a certificate) and that did happen here. If all that was required for compliance with section 15(3)(c) was a brief reference of the sort which does appear in the Appointment clause, it would not be necessary to complete a separate certificate, yet one was done.
• Reference was also made in submission to the wording of clause 5 relating to powers of recall, but I do not see how that advances the matter since obviously the adult no longer has the capacity to do that and the clause as it appears makes no reference to supervening incapacity.

Section 15(3)(ba)

• The point here is that, as quoted above, this paragraph contains yet another mandatory requirement that in the situation to which it pertains, the document must state that the granter has considered how a determination of supervening incapacity may be made.
• There are two schools of thought in the profession as to what must be said to comply with that requirement, but both such schools agree that something must be said. On the one hand, some think it is enough to say the actual words "In the event of my becoming incapable as defined in the said Act of 2000 after the granting of these presents, I have considered how such a determination may be made", (or equivalent words). On the other, others take the view that it is necessary (and certainly desirable) to go further and actually specify what the mechanism for making that determination should actually be. In that situation, one finds wording which follows up the words just quoted by specifying, e.g. that a certificate from a General Practitioner, or perhaps from two certifying medical practitioners, will be regarded as sufficient to "trigger" the operation of the continuing element of the Power.
• I do not actually have to decide the point in this case, for the reason I am about to set out, but I have to say that I much prefer the latter approach, where the granter says that he/she has not only considered the point, but then states what the outcome of that consideration is. That seems to me to accord more with the intention of the legislature, and since the intention was to allow adults to order their own affairs without the need for court intervention, it would seem desirable that the granter actually does specify what is to happen, so that once complied with, the result can be acted upon without any further need for clarification.
• However, in this case, the situation is even more straightforward. In this case, the document is completely silent on the requirement imposed by section 15(3)(ba). There is no mention anywhere even of a basic consideration of the issue at all, or even of the wording in the simpler form of the former suggestion set out above. It was explicitly accepted in argument on behalf of the Bank that it was never intended that they should act as the granter's attorney and operate the powers conveyed while she retained capacity. They accepted that they were only ever going to do so if she lost capacity. That having happened, and since the document contains no such statement, even in its simpler form, as is required by section 15(3)(ba), it is, for that reason also, not valid as it does not comply with the provisions of section 15(3)(ba).
• The document therefore does not comply with the provisions of section 15(3)(b) or of section 15(3)(ba). It is therefore not valid. Since it has not been granted in accordance with the provisions of section 15(3), it follows, in terms of section 18, that it has no effect during the period of incapacity of the granter. And that means that it is not in fact necessary to revoke it since it is of no valid effect.

The Merits of the Application for Appointment as against the Existing Power

• Upon the assumption that I was wrong about the competency points just discussed, I then had to go on and consider the argument on the merits. On that basis, I was dealing with applicants for appointment as financial guardians in a situation where the adult had already appointed a continuing Attorney. Those applicants, as I have mentioned, sought appointment and the revocation of the 2008 Power, in its entirety. Once again, I take the view that if I had decided to grant their application for appointment, it would not in fact have been necessary to revoke the original Power. The reason for that is that section 24(2) of the Act provides that "The authority of a continuing or welfare attorney in relation to any matter shall come to an end on the appointment of a guardian with powers relating to that matter". That means that simply by granting the application for appointment, any authority which the Bank had had would automatically come to an end.
• However, in favour of both positions, both the applicants and the Bank had submitted written submissions, which should be referred to for their full terms, all of which I took into account. The Bank had said in answers, and in submissions, that the applicants would be entitled to charge a fee for acting as guardians, but the applicants had sought no such power to charge a fee, and so the estate would not in fact be burdened by that cost if the applicants were appointed to administer it.
• The applicants pointed out that they were already welfare guardians (on interim appointment) and had in any event been effectively discharging both offices for some time as the adult's carer organisers. The stressed that they did not seek to be paid for so acting, whereas the Bank, as a commercial organisation, would of course be entitled to charge commercial rates (and indeed such powers are specifically inserted into the Power). There was an argument based on Article 8(2) of the ECHR on the issue of respect for family life, but of course, it must be remembered that the adult had in fact (whether validly or not) chosen to appoint someone other than the applicants in 2008. The Bank in that case would also be able to point to the least restrictive option test for an intervention as is set out in section 1(2) of the Act. Ultimately, I did not consider that the Article 8 argument was of any assistance to the making of my decision.
• In response, the Bank argued that they were suitable for appointment and experienced in the tasks required, (which is undoubtedly correct). They pointed out that the moveable estate here is very large, and that the applicants would experience delay in setting up the management plan they would require and in having caution established.
• I was not convinced by that argument. I have already pointed to the significance of the bank's substantial lack of awareness of the adult's actual current financial position, in contrast to that of the applicants. There would be no delay, as I understand it, in obtaining caution, and the applicants were well able to discharge the requirements of office, no doubt on taking suitable advice.
• The Bank also suggested that it would not be necessary for me to revoke the whole authority created by the Power since section 20 gives the court the power to take a number of steps of lesser significance, including revoking some only of the powers or making the continuing Attorney subject to supervision by the Public Guardian.
• Section 20 does indeed so provide, but the Bank is a commercial organisation and there seemed to be no basis for making it so subject or for revoking only some of the powers. It seemed to me that I should either appoint the applicants or refuse their application.
• The Bank also pointed to a file note compiled by the person who took the instructions of the adult in 2008 with a view to arguing that she had not wanted to appoint the applicants. In that file note, it is stated that the granter wanted to appoint the Bank and the next sentence seemed to support the notion that she did not want her relatives to know of her financial affairs. However, as I pointed out to parties, the actual sentence does not say what parties thought it said. The sentence reads "She does like to think of anyone else knowing anything of her financial affairs and feels that the appointment of the Bank will afford her both security and confidentiality". If that sentence was meant to contain the word "not" between the words "does" and "like", then it is critically omitted. I have on many previous occasions spoken of the need for clear and unequivocal material on which to base decisions when I am asked to intervene in the affairs of adults who can no longer take relevant decisions themselves. That sentence does not pass the test. In any event, said he applicants, the adult had indeed allowed the applicants to perform all the tasks they had been, including in relation to her finances, for some considerable time, and well after 2008.
• The Bank also argued that the applicants would have to take advice on financial matters (which would incur payment of professional fees), whereas the Bank could do this in-house, but the Bank also has in-house legal advice available to it and yet chose in this case to instruct separate solicitors.
• In all of these circumstances, I had no hesitation in coming to the view that if this resulted in a situation where I required to exercise my discretion in deciding whether to appoint these applicants, and thereby create a situation where the authority of the previous Power granted came to an end, then I should decide in favour of the applicants, and did so.

Additional Matters

• A number of these came to light and it is important to note them as they are of general importance. The meeting at which the adult had given instructions to grant the continuing Power in favour of the Bank seems to have taken place at the offices of a company called Mazars CYB Services Ltd. I am told that is a firm of chartered accountants which provides legal and financial services to the Bank, and employs solicitors. I do not know if the person who conducted the meeting in 2008 with the adult was a solicitor, although the (different) person who completed the section 15(3)(c) certificate and witnessed the signing is. There is no information that the adult at any stage sought independent legal advice, and it is entirely possible that the adult proceeded without independent advice.
• There was a further development in June 2011. Again against a background in which there is no information that the adult took independent legal advice, the adult appears to have committed herself to an arrangement whereby she conveyed her own home, being of course heritable property, to a trust. I have seen the disposition, but not the trust document. The solicitor for the Bank stated that he did not have, and had not seen, a signed and executed copy of the purported trust document, though he had seen a copy unsigned version. The adult has moveable property of some £366,000 and her house is said to be valued at some £200,000. The applicants had said that they had become aware of this disposition and required to investigate the circumstances, having known nothing about it at the time.
• The disposition conveys the heritage to three named and designed trustees, said to be acting in terms of a Deed of Discretionary Trust of even date with the disposition. Two of the trustees are solicitors and the third is the adult herself, which immediately raises two questions; firstly, how the trust is to be discretionary if the adult herself is a trustee, and secondly, how the trustees are to obtain the adult's consent since she has lost capacity. I do not know if the Deed of Trust answers the first question, and I understand that the Trust Deed may not answer the second one, and although it might be that a validly appointed continuing Attorney would be able to do so in terms of a standard clause in the Attorney document, there is here, in consequence of my earlier decision, no validly appointed Attorney. I am unaware what knowledge, if any, or what rôle, the two named solicitors had in the creation of this Trust and of the disposition in their favour as trustees. I am told by the Bank that the adult seems to have utilised, for the purposes of instructing these steps to be taken, the services of an organisation called the Will Writing Company. Once again, there is no information of any independent legal advice having been taken by the adult before she took these steps, and it is not known if any legal advice was given to her by that organisation.
• Further, the consideration stated in the disposition is said to be for "certain good and onerous causes and without consideration". In the modern way, the testing clause gives no information which assists, but I was told that the person who has signed as the witness to the adult's signature gave as an address that of the Will Writing Company. I was also told, by the Bank, that the purported Trust deed states that the heritage was transferred for payment of the sum of £500 and in order "to avoid work for my executors in relation to my estate". This is neither the time nor the place to express a concluded view on all of this, but it is relevant to observe that it is lawful to alienate property in order to avoid it being taken into account in relation to certain assessments which might later be made, but there is a question as to why it was done here, and related only to the heritable property, in a situation where the adult remained in possession and control of such a large moveable estate, which would be well above the levels which would render her still liable for fees such as for care home costs.
• The need to have this matter properly investigated, and by persons acting for the benefit of the adult, and who were as aware as anyone of the background to the creation of these documents, was another cogent reason to choose to appoint the applicants in this case.
• There is however one further matter of general importance which emerged from the consideration of this case. I have said that the document which purported to create a continuing Power of Attorney in favour of the Bank is not valid as it does not comply with the requirements of section 15(3)(b), and separately, section 15(3)(ba) of the Act, and as such in terms of section 18, has no effect during the adult's incapacity.
• Assuming that I am correct about this, and for the reasons articulated, there will likely be wider implications. The document drawn up and signed in this case is of a "pro forma" standard type. It is likely therefore that this particular commercial organisation has other such documents in its favour, and perhaps many other such documents in its favour, ostensibly granted in purported compliance with the Act and registered with the Office of the Public Guardian. If I am correct in the view which I have taken as to validity, then none of such documents have been granted in accordance with the provisions of section 15 and none are valid, since such a continuing Power is valid only if it is expressed in a written document which complies with the requirements of section 15(3).
• If the granter or granters of any such documents are now adults with incapacity as defined in the Act, they will not now be able to effect any amendment of the document or recall of the powers granted. That means that any such Power (in terms of section 18) will be of no effect, and that means that no one will have the authority to administer the financial affairs of any such adult. What will then be required is for an application to be made, in every such case, under the Act for the appointment of a financial guardian.
• But unfortunately, it does not end there. There may be many, and again very many, documents which have been prepared, signed and registered, purporting to create a continuing Power of Attorney, and which in similar vein do not comply with the provisions of section 15(3). As a matter of inexorable logic, all of such purported attempts to create continuing Powers of Attorney and which are in the same form as the one in this case will be contained in documents which will have no effect during the period of incapacity of the granters thereof.
• It will be the case that many private individuals, law firms, and commercial organisations will have drawn up and had executed documents in similar terms to this one, and if they have, and the opinion expressed here is correct, they are not valid and will have no effect during the granter's incapacity. My attention has been drawn to the official site of the Office of the Public Guardian, on which there is a webpage entitled "Sample Powers of Attorney" and which then provides samples, or styles. The accompanying text states that samples of powers of attorney that have been registered with the Public Guardian have been placed on this website, that they meet the current registration criteria and are for information and advice purposes. It is certainly correct that the last paragraph of the official accompanying text deals with the section 15(3)(ba) point, and suggests that it is possible to add a clause stating that the document is only to be used after the granter becomes incapable and then suggests the wording "the granter has considered how their [sic] incapacity is to be determined". That is the "short form" of the relevant wording I discussed earlier, and may therefore actually be sufficient for the purposes of section 15(3)(ba). It is worth emphasising that if it is there being pointed out that certain words "could" be (and of course I have already stated "should" be) added to the sample in order to comply with the provisions of section 15(3)(ba), then it fortifies the point I have made that similar compliance with the provisions of section 15(3)(b) requires the addition of a statement of the sort already mentioned as a clear expression of intention.
• However the sample, or style, which then appears on the website, contains an Appointment clause which is identical to the wording used by the Bank in this case with regard to its reference to appointment in terms of section 15 of the Act as it may be amended, but does not contain a specific clause, or specific statement, as I have ruled is required by the provisions of section 15(3)(b). The sample therefore does not "incorporate a statement which clearly expresses the granter's intention that the power be a continuing power" as is required by section 15(3)(b). That means that any document which has been drawn up based on the sample or style there to be found, and in which there has not been incorporated a specific statement to the effect of the requirement of section 15(3)(b), has not validly created, in my opinion, a continuing Power of Attorney.