Edinburgh sheriff finds power of attorney made by woman two months before Alzheimer’s diagnosis invalid

About this case:

• Citation:
  [2023] SC EDIN 16
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Robert D M Fife

Fiona Brown, the Public Guardian, applied under the Adults with Incapacity (Scotland) Act 2000 in relation to an adult, A, who sought to alter her power of attorney to include all three of her children instead of just two. A had been diagnosed with dementia two months after being assessed as capable of revoking the first PoA.

The application was heard by Sheriff Robert Fife. Ms Watt, solicitor, appeared for the pursuer. Appearances for other parties were made by Mr Milne, solicitor, and Ms Jack, the curator ad litem for the adult.

5-10 minute memory

On 9 May 2014, the adult granted a continuing and welfare power of attorney in favour of her son and one of her two daughters, T and V. Her solicitor, S, signed the statutory certificate confirming her capacity to grant the first PoA and it was registered with the Office of the Public Guardian on 21 June 2014. On 22 July 2021, the adult met with S and gave instructions that she now wished to have all three of her children as attorneys.

At the request of S, a general practitioner at Dalkeith Medical Practice, Dr G, assessed A on 30 September 2021 and concluded that she had capacity to revoke the first PoA and grant a new one. The deed for the new PoA was submitted using the OPG’s Electronic Power of Attorney Registration website by S. However, the existing attorneys had not signed the EPOAR Attorney Declaration form. On 17 November 2021, the adult was diagnosed with early stages of Alzheimer’s Dementia and said to have a short-term memory of approximately 5 to 10 minutes.

It was submitted for the Public Guardian that it was not established that T and V were prepared to act under the second PoA for the purposes of registration. Thus, not all the statutory requirements had been met and the second PoA was not competent. Esto it was competent, the evidence as a whole allowed the court to determine that the adult did not have capacity to revoke the first PoA.

For W, the adult’s third child, it was submitted that the court should uphold the original assessment of the adult. Assessments carried out by other doctors, Dr Limet and Dr Beaglehole, who were asked to provide second opinions were influenced by false information and should be dismissed as invalid.

Wished to retract

In his decision, Sheriff Fife said of the competency of the second PoA: “The instructions from the Adult in July 2021 to revoke the first power of attorney and grant a second power of attorney appointing W, as an additional attorney along with T and V was a very significant change of circumstances given the family dynamics. S accepted she was in error in not obtaining the consent of T and V to act as attorneys before proceeding to register the second power of attorney.”

Addressing the capacity of the adult to make welfare decisions, he said: “On 19 November 2021, Dr G sent a letter to S. The letter stated that he had undertaken a capacity assessment of the Adult on 30 September 2021 in respect of her revoking an existing power of attorney and granting a new power of attorney adding one of her children, and that on the information available to him at that time he concluded that the Adult had capacity to make that decision. Dr G had since received information, which made him uncertain about the conclusion he had reached and he wished to retract the decision he had made regarding the Adult’s capacity on 30 September 2021.”

He concluded: “I accepted the evidence of Dr G that once he was contacted by Dr Beaglehole following her capacity assessment on 17 November 2021, he could no longer support his assessment on 30 September 2021 that the Adult had capacity to make any decisions about any power of attorney. In these circumstances, it was proper for him to retract that decision.”

The sheriff therefore determined that the adult did not have capacity to revoke the first power of attorney or to grant the second one.