Dept Q on Netflix got something really wrong about power of attorney (spoilers ahead!)

Dept Q has been an immediate binge-watching favourite since it aired on the streaming site a few months ago.

The nine-part series set in Edinburgh sees a misfit cold case unit of DCI Carl Morck, DC Rose Dickson and Akram Salim set out to solve the disappearance of missing lawyer Merritt Lingard.

During their investigation they learn that before her disappearance, Merritt cared for her brother William who lacked capacity due to aphasia, a condition that impacts language, expression and comprehension – he only communicates by drawing sketches. But after Merritt’s disappearance, William was placed into the care of appointed guardian Dr Fiona Wallace who claimed to be able to “make all the decisions that affect his life”.

As interesting as the dialogue might be for the show, as a serious injury solicitor there was immediate red flags, so with the help of colleagues at Wright, Johnston & Mackenzie let's take a look.  

In episode two, Carl and Akram trace Dr Wallace to a stately country mansion. During the first interaction with Dr Wallace, the investigators request an audience with William. But Dr Wallace denies the request, as the dialogue reveals:

Carl: Can I see him? 
Dr Wallace: No, you cannot. There's nothing William can help you with. 
Carl: Well, he is a grown man, so he can decide for himself whether he wants to see me. 
Dr Wallace: He may be a grown man, but the decision is not his to make. 
Carl: Why is that?
Dr Wallace: One of the many conditions of bringing William here was that I would become his legal guardian. 
Carl: Why would you do that? 
Dr Wallace: It was the court's decision. I'm considered a very safe pair of hands. My institute pays all of William's expenses, which are considerable. There's a tendency for those less scrupulous than myself to abandon patients like William when they're deemed hopeless. 
Carl: Is William hopeless?
Dr Wallace: I like to think no one is hopeless, but he is helpless, and as such, unable to protect himself from an errant inquiry that may trigger him. You'll have to trust my judgment on this one… Now if you'll excuse me, I'm awarding a colleague at the Neurology Society luncheon this afternoon.
Carl: I wasn't finished.
Dr Wallace: If you need anything further, you can of course come back with the appropriate warrant.

Fast forward to episode five and Carl, Akram and Rose all go back to the manor in an unannounced visit. While Carl makes a beeline for Dr Wallace’s office, Akram and Rose scour the property, room to room, in the hope of finding William. This second, more charged, encounter goes like this:

Dr Wallace: I don't believe we have an appointment. 
Carl: We don't. Might wanna close the door, Doc. 
Dr Wallace: Are you going to tell me what this intrusion is about?
Carl: Sit down, please. Why do you allow William Lingard to stay here gratis? 
Dr Wallace: I don't allow him anything. It's an arrangement where he gets a home and I get to observe his condition in more conducive surroundings. 
Carl: And by conducive, you mean comfortable?
Dr Wallace: Certainly. No one flourishes in a warehouse, which is what most institutions are. 
Carl: Ah, you must have collated an awful lot of data over the four years he's been here. 
Dr Wallace: Quite a bit, yes. I hasten to add that William's condition has improved significantly as well.
Carl: You said his condition was deteriorating.
Dr Wallace: I think you may have misheard me.
Carl: (while holding a framed photo from Wallace’s mantlepiece): St. Moritz. Nice. You said you had the power to prevent me talking to William on the grounds that you were his legal guardian. 
Dr Wallace: That's true. I am. 
Carl: What does that mean, exactly?
Dr Wallace: It means, simply put, I make all the decisions that affect his life. 
Carl: Such as how best to, um... allocate his finances?
Dr Wallace: I'm not sure I follow you. 
Carl: And I'm sure you do.
Dr Wallace: Then I'm not sure I like what you're implying. 
Carl: What's that you think? 
Dr Wallace: That I'm somehow stealing money from one of my patients, which is absurd. 
Carl (now picking up an antique plate): Very nice piece. 
Dr Wallace: As legal guardian, even with power of attorney, I'm only allowed to contact the trustee. I have no reason to be because I provide for every aspect of William's care. 
Carl: Except the trustee, in this case, has been missing for four years. 
Dr Wallace: Which is why the bank appointed a lawyer to act as the trustee. 
Carl: Yeah, the Bank of Jersey.
Dr Wallace: Wherever it may be, yes. 
Carl: Say I search this office. What do you think the chances are there might be a cheque book or bank card in William Lingard's name? 
Dr Wallace: Zero chance. Because you're not going to search this office, not without a warrant. 
Carl: That's a funny old answer. 
Dr Wallace: Meaning? 
Carl: Meaning you could've just said "zero" and left it at that. 
Dr Wallace: As someone with power of attorney, I'm entitled to hold those documents. 
Carl: Yeah, but you told me you pay for William's care in exchange for the vast knowledge he's giving you.
Dr Wallace: I'm merely making a point that there are rules. If I were withdrawing money from William's trust, I'd need to account for every expense.
Carl: Yeah, such as the annual service on a 2024 Mercedes SLC 250D. 
Dr Wallace: Anything like that would trigger an immediate audit. But go ahead, have your fun.

What did Dept Q get wrong about powers of attorney?

There’s a lot to unpack from these scenes but there’s a few key points to know: the first being that power of attorney and appointed guardianship are two different things.

In Scotland – which is precisely where Dept Q is set – the Adults with Incapacity (Scotland) Act 2000 confirms that when an adult is incapable of making decisions for themselves, a guardian may be appointed by the court to manage financial, personal welfare or legal affairs. This most commonly happens after sudden incidents where there are no plans in place that anticipate a loss of capacity.

This is different to power of attorney where a capable adult gives another person legal permission to make decisions on their behalf before they become incapable of managing their own affairs. This is common where individuals suffering from degenerative diseases wish to give their loved ones the authority to make decisions towards the end of their lives when they cannot do so for themselves.

In the case of Dr Wallace she claims to have both in place – in episode two she identifies herself as an appointed guardian for William, and in episode five she says she also has power of attorney. As far as the situation in Dept Q goes, Dr Wallace can never have Power of Attorney. William has not had capacity since before Dr Wallace came on the scene and the only person who can grant Power of Attorney is the adult themselves while they still have capacity. Since William has not had capacity since before he met her, he cannot have appointed her – Wallace can only be a guardian appointed by the Court.

What Dept Q got right

If Merritt was only missing and never declared dead then it is possible that after a period of absence, someone could seek appointment as guardian as the priority would be that adult’s needs.

While disputing implications of embezzlement Dr Wallace stated any irregular activity could trigger an audit – this is true. The Office of Public Guardian in Scotland requires guardians to submit annual accounts (with receipts and statements) showing how they have spent any money. These accounts are then reviewed by the OPG which has investigatory powers to address concerns about the administration of POAs and Guardianships. 

How does power of attorney and guardianship affect injury claims?

Without the rights authority in place even close family members have no automatic right to act. The courts require documentary proof - court orders for guardians or registered power of attorney certificates - before permitting any action.

This safeguard ensures the interests of vulnerable adults are protected, and that any legal action is legitimate and in the individual’s best interest.

For personal injury claims, appointed guardians and those with powers of attorney is not merely procedural - it is central to the delivery of justice for those unable to act for themselves.

They are voices for the voiceless. Trusted to uphold the interests of those whom they guard.  

For both claimants and defenders, understanding these legal frameworks is vital to ensuring that any action against the NHS is robust, fair, and above all, lawful.

If you wish to know more about guardianship orders or putting power of attorney measures in place then Irwin Mitchell can provide you with reliable and trusted advice via dedicated private client solicitors whose sole aim is to help you to help those closest to you.