Scottish Powers of Attorney apply in England in theory, but what about in practice? - Elizabeth Sparks

Earlier this month, the Ministry of Justice confirmed that Scottish Powers of Attorney registered with the Office of the Public Guardian in Scotland are, and remain, valid in England. The Ministry also determined that there is no need for legislation to be introduced to that effect. Powers of Attorney can authorise attorneys nominated by the granter (of the Power of Attorney) to make decisions and act on the granter’s behalf in the event the granter loses the capacity to safeguard their own affairs.

Whilst this is welcome news, it is widely acknowledged that asset holders such as banks and building societies often fail to recognise the validity of Scottish Powers of Attorney presented by attorneys as their authority to act on behalf of somebody who lives in England.

It has been suggested that more needs to be done to ensure those dealing with Powers of Attorney are aware of the legal position, avoiding unnecessary delay and confusion at what can already be a stressful time for those acting as attorneys who, for example, might need to be able to access funds in order to pay for the granter’s care.

It is not unusual for people to have connections with both Scotland and England and to move between the two countries over the course of their life. Despite this welcome announcement from the Ministry of Justice, advice should always be taken from a solicitor qualified to advise on the law in the jurisdiction of residence at the time of any move. It remains possible to grant separate Scottish and English Powers of Attorney in favour of the same attorneys which can sometimes be advisable as a practical solution.

Elizabeth Sparks is an Associate with Morton Fraser

It is also not uncommon for people living in Scotland to appoint family members or close friends living in England, or further afield, to act as their attorneys. Attorneys don’t need to be resident in Scotland, or even the UK, in order to act under a Scottish Power of Attorney.

Financial attorneys can operate Powers of Attorney at a distance, making use of email and online banking to do so. However it is advisable, where possible, for the granter of the Power of Attorney to appoint attorneys who are geographically close and will therefore be able to visit them and deal easily with their affairs and their professional advisors. This can be especially important when appointing welfare attorneys who would be responsible for safeguarding the granter's welfare, making decisions about matters such as care and health treatment.

One of the intended effects of the reform of Powers of Attorney in England is that it will be possible to grant a Lasting Power of Attorney (broadly the equivalent of a Scottish Continuing Power of Attorney) entirely online.

It is not yet possible to grant Powers of Attorney online in Scotland, and a physical document must still be signed. However, as a result of guidance introduced to the profession during the coronavirus pandemic, it is possible for Powers of Attorney to be granted over a video call with the solicitor signing the necessary documentation whilst not being physically present in the same room as the person granting the Power of Attorney.

This makes it easier for a number of people who would otherwise struggle to grant Powers of Attorney to appoint somebody to have authority to safeguard their affairs. If video calls are not an option, solicitors will frequently meet with clients in their own home, hospital or care home in order to discuss their legal affairs.

This confirmation of the fact that Scottish Powers of Attorney remain valid in England is undoubtedly helpful in clarifying the position, but it remains to be seen what the practical effect will be and whether attorneys seeking to use Scottish Powers of Attorney as authority to act in England will encounter any resistance from asset holders in the future.

Elizabeth Sparks is an Associate with Morton Fraser