I recently spoke with BBC Scotland about these significant civil cases, which raise questions about the balance between empowerment and protection when appointing an attorney to manage your financial and personal affairs.
Most attorneys act appropriately of course — and POAs are incredibly important — but there’s more that can be done to minimise the risk of things such as undue influence and financial misuse.
Understanding the McCulloch case
In two cases — the first dating back to 2019 — the court found the elderly McCulloch brothers, Hugh, Roderick, and David, from Muir of Ord, had undue influence exercised on them by the attorneys they appointed. Their family farm was transferred for no payment and later sold for development. Plus, large sums of money were transferred from the their accounts. The court ordered the attorneys to repay around £1.15million plus legal expenses combined.
Sadly all three siblings have now died. The McCulloch cases demonstrate how financial wrongdoing can go undetected and how important it is for the legal profession — working with partners such as the NHS and local authorities — to do what it can to support vulnerable adults who may be in this position and subjected to undue influence by those in a position of trust and power.
Why this matters — oversight and reform
POAs are an essential tool that allow trusted individuals to make decisions on behalf of someone who may become unable to do so. However, risks of undue influence remain and it’s often difficult to detect financial wrongdoing early.
Recent discussions around POA reform — including a Scottish Government consultation — suggest changes could ensure POAs remain effective while minimising risks of misuse, and I’d welcome moves in that direction.
It’s clear though that any reform would need to carefully balance the crucial elements of protecting vulnerable adults as well as the practicalities and resources that oversight needs.
Reform could include —
Increased safeguards when people create a POA — stronger checks, potentially requiring solicitor involvement for all POAs, could prevent abuse from the outset
Better financial oversight — spot checks or requiring attorneys to submit financial records, without introducing excessive bureaucracy for those acting in good faith
Raising awareness of POA responsibilities — many people enter into POA arrangements without fully understanding the authority they grant. Clearer guidance could help individuals and families make informed decisions
For further details, you can read the full Scottish Government consultation summary here: Scottish Government Consultation and the Highland Learning Review of the McCulloch case here: Learning Review.
Key lessons for anyone considering a POA
How do I choose the right attorney?
Your attorney should be someone you trust implicitly, with the skills and integrity to manage your affairs responsibly. Consider appointing more than one attorney or setting financial limits.
Can an attorney do whatever they want?
No — attorneys have a legal duty to act in the best interests of the granter. However, without oversight, abuse can go undetected, which is why reforms are being discussed.
What should I do if I suspect POA misuse?
Concerns should be reported to OPG (Scotland), which has powers to investigate. Financial institutions such as banks can also play a role in identifying and flagging suspicious activity.
What happens next?
With the consultation now complete, the next step will be for the Scottish Government to assess how best to implement any reforms. If you have questions about POAs,
Further reading
You may also find these past articles helpful —
Victoria Leslie
Joint managing partner
She heads up the litigation department in our Inverness office. Victoria acts commercial, public and private clients in litigation disputes including breach of contract, recovery of payment and property, professional negligence claims, property and partnership disputes. One of Victoria’s particular interests is “contentious succession” and has dealt with various cases involving challenging the validity of a Will and challenging or defending the actions of Attorneys and Executors. Victoria is accredited by the Law Society of Scotland as a specialist in personal injury law. Victoria also works for the public sector and insurance companies in employer or public liability claims involving physical and psychological injury, industrial disease and road traffic accidents involving fatality or catastrophic injury. Victoria regularly appears in the sheriff courts throughout the Highlands and Islands and has worked on a number of high profile cases both in the sheriff court and the Court of Session.
Posted: March 19th, 2025
Filed in: Private client, Litigation, Insights