We regularly advise clients on the many benefits of having a Financial and Welfare Power of Attorney in place. Powers of Attorney allow you to set out who you would wish to make Financial and/or Welfare decisions on your behalf, in the event that you require assistance or are otherwise certified by a Doctor to be suffering from mental incapacity at any point in the future.
It is a common misconception that our nearest and dearest already have these powers, but they don’t – unless you have granted Power of Attorney in their favour.
Powers of Attorney can only be granted whilst you have full mental capacity and so are something that are generally put in place whilst you are fit and well, ‘just in case’, you need to rely on it at any point in life. They are not just for the elderly – clients of all ages can be affected by a medical diagnosis, workplace or road accidents which can affect their mental capacity.
It is not unusual for clients to have family who live all over the UK and some may choose to move from Scotland to England (or vice versa) to be closer to them and may already have Powers of Attorney on the ‘home’ side of the border that they would want their Attorney to be able to use on the ‘new’ side of the border.
Will my existing Scottish Power of Attorney be accepted in England (or vice versa)?
Generally speaking, a Scottish Power of Attorney which has been registered with the Office of the Public Guardian in Scotland should be accepted by organisations in England and Wales or vice versa. However, this is not automatic and there can sometimes be difficulties if the organisations your Attorney is dealing with (e.g banks etc) refuse to accept it. This is not something your Attorneys want to happen at a time when you really need them to assist. The Laws in Scotland and England & Wales dealing with Adults with Incapacity are different and so different rules apply in each country.
What can you do?
The safest option is for a Power of Attorney to be granted in any jurisdiction where you have dealings and may need your Attorney to act. If you already have a Scottish Power of Attorney in place, still have mental capacity and are moving to England, we recommend that an English Lasting Power of Attorney is also put in place by an English Solicitor, as soon as possible, once you move. This does not replace the Scottish Power of Attorney but means that no matter which side of the border your Attorneys are dealing with your affairs on, they will have the necessary Power of Attorney to be recognised in that jurisdiction. The same applies for a person moving from England to Scotland.
What if the Adult has already lost capacity and so can’t do that?
Attorneys should seek advice on the ‘new’ side of the border about whether the existing Power of Attorney will be recognised by those organisations they will need to deal with. If the Power of Attorney will not be accepted, it may be necessary for an Intervention Order or Guardianship Order (or equivalent) to be sought. These can be quite complex legal procedures, which may take a long time and incur significant costs to put in place. Meanwhile, your Attorneys may be unable to act. By seeking advice as soon as possible following a move, or even ahead of time, Attorneys can take practical steps to ensure your rights and assets are protected.
Cross-border co-operation
The Law Societies of Scotland and England & Wales have recently issued a joint information note to help Solicitors and other organisations on both sides of the border navigate these differences. It includes guidance on the key Laws, procedures for recognition of Orders (such as Powers of Attorney or Guardianship Orders) and how the Courts in both jurisdictions can cooperate. Whilst these resources are intended for professionals, they underline the importance of advance planning for individuals wherever possible.
What to do if you want to know more about Powers of Attorney
Our experienced Private Client Team are on hand to assist with any questions you may have about Powers of Attorney in Scotland, whether you want to put one in place, already have one and have questions or are considering a move, or if you’re an Attorney looking to act on behalf of an incapable Adult. They can be contacted by calling our offices on 01383 620222.
