Regardless of what's happening with COVID-19, anyone considering putting a power of attorney in place should still be able to do so, thanks to the benefit of technology.
And, of course, for clients without access to technology, separate provisions can still be made where possible and appropriate.
To be registered, a power of attorney must be signed by the granter and certified by either a solicitor or a GP who has discussed the power of attorney with the granter, and is satisfied that they have the capacity to put one in place.
What is usually a straightforward procedure has become a little more complex and both the Law Society of Scotland and the Office of the Public Guardian (OPG) have speedily risen to the challenge of setting out a framework on how best to proceed.
Taking instructions can be done over the phone and drafts finalised by email, where available. When it comes to the actual signing of the documents there are suggested guidelines in place:
Where at all possible, meeting in person should currently be avoided for social distancing reasons.
It is acceptable for the solicitor and client to use a visual means of communication such as Skype, FaceTime or other form of video call. It is not acceptable to certify the power of attorney over the telephone.
The solicitor should ensure that the client has the power of attorney document in advance of the meeting — either posting it out or sending it to them via email (in pdf format so that it can't be altered) to print off. The solicitor should retain the certificate section at the end of the document.
Under normal circumstances, the solicitor (or GP) is also able to act as the witness but where they are not in the same room as the granter this is not permitted as both parties cannot put their pens to the document at the same time.
Where there is an independent witness available for the granter, they should bring and use their own pen as part of the new social distancing guidelines. The granter should sign the power of attorney, followed by the witness.
The solicitor should sign the certificate at the same time.
Once the solicitor has received the original, signed document in the post, they can attach their certificate and submit the papers to the OPG. A photocopy or scan from the granter cannot be accepted.
Every situation is different and should be evaluated accordingly. For example, there's separate guidance for protecting vulnerable clients on the Law Society of Scotland's website.
It is a matter of professional judgement for a solicitor asked to certify as to whether these arrangements are appropriate in any individual case.