With many of us living longer, we are becoming more conscious of the need to safeguard our affairs by putting in place a Power of Attorney, appointing trusted individuals to make financial and/or welfare decisions on our behalf should there come a time when we have to rely on someone else to make those important decisions for us.
It is, however, now relatively common for people to own property abroad or even decide to retire abroad. Before you buy that villa in Spain you should consider what would happen if you were to lose mental capacity and whether your current Power of Attorney arrangements would be recognised in another jurisdiction.
If you already have interests abroad, including interests in other parts of the United Kingdom, there may be further steps you should now be taking, whilst you are still able to do so.
Can you use a Scottish Power of Attorney in England?
A Scottish Power of Attorney may be used in England and Wales, where an organisation is willing to accept it. For example, if you hold a bank account in England you should check whether your bank will accept a Scottish Power of Attorney. To ensure your attorney can carry out business on your behalf without difficulty, where you have interests in England, you should consider the possibility of putting in place a Lasting Power of Attorney in England and Wales in addition.
Can you use a Scottish Power of Attorney abroad?
Whether a Scottish Power of Attorney will be accepted abroad will depend on the country in question and their legal requirements for such documents. You will likely require the document to be translated into the national language and the jurisdiction may also require Legalisation or Apostillation of the document by the Foreign and Commonwealth Office.
In order to ensure your attorney will have the powers they need to carry out your business abroad, you should seek to obtain a Power of Attorney in the foreign jurisdiction. Precisely which documents you need, and whether they will require to be notarised, will depend on the jurisdiction, and the organisations which you will need to recognise the power of attorney. Specialist legal advice should be sought in the appropriate jurisdiction.
Can you use a non-Scottish Power of Attorney in Scotland?
You can use a foreign Power of Attorney in Scotland provided the organisation in question accepts its authority. If they do not, the organisation may require some form of Scottish endorsement of the Power of Attorney. This presents an issue because Scottish legislation suggests that a non-Scottish Power of Attorney is automatically valid in Scotland and, as such, there is no arrangement under the law in Scotland for having such a Power of Attorney endorsed.
The Office of the Public Guardian (Scotland) are aware that the current position is less than satisfactory and until the legal position is clarified they have produced a Certificate which can presented along with a non-Scottish Power of Attorney to a Scottish organisation.
If you have financial interests in Scotland you may wish to consider drawing up a Scottish Power of Attorney to avoid difficulties at a later date.
The Hague Convention XXXV on the International Protection of Adults
The Convention was concluded in 2000, with the hope of addressing this issue by providing solutions to avoid conflicts between legal systems in respect of jurisdiction, applicable law, recognition and enforcement of measures for the protection of adults. This includes the form and effectiveness of Powers of Attorney between Contracting States. The Convention, however, requires reciprocity between Contracting States and there are many countries yet to ratify the Convention. Issues have arisen because the UK is a signatory but has ratified the Convention in respect of Scotland only.
Even where it might be theoretically possible to avoid having to draw up a local Power of Attorney in each relevant jurisdiction, in reality, it may still be the easiest and most practical solution, especially where you own property or land abroad.
It is extremely important to be professionally advised when putting in place a Power of Attorney, not only so that you are aware of the full effect of the document but also to ensure that the document is well drafted and complies with the laws of the appropriate jurisdiction.
In the words of Walt Disney, “it’s a small world after all.”
Caroline Pringle is an Associate with Murray Beith Murray