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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11545
Experience:  30 years as a practising solicitor.
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My mother-in-law had the new POA document revoked about 2 weeks

Resolved Question:

My mother-in-law had the new POA document revoked about 2 weeks ago. This was done in her bank who were in touch with OPG and the bank Head Office. She has alzheimers and is due to get a formal capacity assessment on Tuesday. This had been set up weeks ago by the solicitor she first saw about the revocation. The solicitor does not know that the revocation has taken place.
My question is this:
If the doctor decides she, at the time of the assessment, does not have capacity, will this affect the already revoked POA document?
Thank you
Submitted: 3 years ago.
Category: Scots Law
Expert:  JGM replied 3 years ago.
Thank you for your question.

If she is incapax then the revocation is invalid on the assumption that she was also incapax when she executed the revocation. That would mean that the power of attorney remains in force.

Happy to discuss further.

I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 3 years ago.

The date of revocation was 22Jan


Is it not possible that she could have had capacity on the day she revoked the POA, and that she could have deteriorated in a short space of time so therefore failing the capacity assessment. on Tues.


 

Expert:  JGM replied 3 years ago.
That is possible. You would need to take advice from her doctors on whether that is likely or not.
Customer: replied 3 years ago.

Thank you.


We know alzheimers can often fluctuate. I don't see how her ability to make decisions 3 or 4 weeks ago would, in the eyes of the law, be necessarily the same as her ability today.


Surely there is a time limit, in the eyes of the law between the assessment and the signing of any legal document, e.g.date of assessment then signing for POA.


 

Expert:  JGM replied 3 years ago.
No, there is no time limit or period laid down by the law.

The test is whether, on the evidence assessed on a balance of probabilities, she was more likely to be capable or not when she signed the revocation. That is why evidence of the doctor and perhaps others who dealt with her round about that time would be relevant.
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