More and more people are granting powers of attorney in favour of family or friends. Granting a power of attorney ensures there is someone appointed to manage your affairs if you are incapable of doing so yourself. Power of attorney can become more complicated if you move away from Scotland or hold assets that are based outside of Scotland. In this post, we try to answer the question, can a Scottish Power of Attorney be used in England?
What is a power of attorney?
A power of attorney (PoA) is a deed in which you appoint another person (or people) to deal with your affairs on your behalf. There are two main reasons why you may be unable to deal with your own affairs:
- incapacity as a result of illness, or an accident, or through the ageing process;
- you are in good health but, for instance, you are going to be out of the country for an extended period.
In either of these circumstances a power of attorney can be useful. It will mean you will have somebody you trust managing your affairs while you cannot. This in turn means that your money and property can be preserved and be used for your benefit.
If you become incapacitated and have not granted power of attorney, no one has automatic rights to deal with your affairs. In these circumstances a court order for legal guardianship may be required, which can be a lengthy and costly process.
Which matters can a power of attorney cover?
A power of attorney allows you to grant powers under two categories – financial or welfare powers. It is common for both sets to be included in the same power of attorney.
Financial powers include, for example, powers to:
- buy and sell property on your behalf,
- access your bank accounts, and
- pay bills.
Welfare powers can include matters such as:
- making certain medical decisions on your behalf, or
- potentially deciding where you should live.
Can a Scottish power of attorney be used in England?
Whether a Scottish power of attorney can be used in England or Wales is something of a grey area. This depends on the approach of the organisation you are dealing with – for example bank or pension company. If the organisation is happy to accept the terms of the Scottish power of attorney then there is unlikely to be an issue. But if not, the situation is more complicated.
The body responsible for registering powers of attorney is The Office of the Public Guardian in Scotland. They comment on this topic as follows:
‘A Scottish PoA can be used in England or Wales if an Organisation (e.g. a bank) accepts its authority, but if they do not things are more problematic. The Organisation may require an endorsement of the Scottish PoA from the English authorities [Court of Protection] but the MCA [Mental Capacity Act 2005] does not appear to allow for such an endorsement. It is recognised that this is an unacceptable position and perhaps not what was intended.’
Office of the Public Guardian (Scotland)
The Office of the Public Guardian goes on to say that the authorities in England are aware of this issue and that the English authorities have said they will legislate to remedy this when there is an opportunity to do so.
Until the English authorities introduce new legislation, the safest approach is to prepare an English power of attorney in addition to your Scottish power of attorney. You should consider this if:
- you have a Scottish power of attorney but have now moved to England; or
- you are based in Scotland but have assets in England.
Contact us
We would be happy to assist you with preparing power of attorney in Scotland or to discuss the possibility of using a power of attorney in England further. Please contact our Personal Law team on 0131 225 7558 to speak to one of our Personal Law Solicitors.
DISCLAIMER
The content of this page is for information only. It is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Gibson Kerr Ltd accepts no responsibility for the content of any third party website to which this webpage refers. Gibson Kerr Ltd is regulated by the Law Society of Scotland.
