POA, Scottish or English

[Moonflower]

i've been unable to find the answer to this one by googling...
I need to set up POA for mum as soon as possible, she is just about still able to consent to this. She was living in England, and that's where her house (which will have to be sold to fund her care) is. But she is now in a care home near us in Scotland, has been there for 4 months and will stay in Scotland permanently.
So, do I need an English POA or a Scottish one?
Obviously it would be easier for me to see a Scottish solicitor and sort it out here - but that's no help if it doesn't give me authority to deal with assets in England.

Has anyone else been through this one before?

[nitram]

Q. Can a Scottish Power of Attorney (PoA) be used in England?

A. It is unclear. Schedule 3 19(1) of the Mental Capacity Act states that a protective measure taken in relation to an adult under the law of a country other than England and Wales is to be recognised in England and Wales if it was taken on the grounds that the adult is habitually resident in the other country, however there is some debate about whether a Scottish power of attorney is "a protective measure" and thus if this section applies.

If proxies are experiencing difficulties please contact the Office of the Public Guardian for England & Wales, telephone: 0300 456 0300 e-mail: customerservices@publicguardian.gsi.co.uk

Q. Is a lasting (English) power of attorney valid in Scotland?

A. An English power of attorney is ‘recognised’ in Scotland without needing to do anything but if you wish to have it ‘registered’ [in Scotland] there is a court process which, assuming the Sheriff is agreeable, concludes with the English document being sent to the Public Guardian in Scotland for registration and you being issued with a certificate from the Office of the Public Guardian to confirm its registration.

If authorities in Scotland are happy to act on the English document because they are ‘recognising’ it as valid in Scotland then there is no need, necessarily, to proceed to the registration stage. However if it is not being recognised and you wish to ‘enforce’ its use in Scotland it will first have to be registered. An English document, once registered in Scotland, has exactly the same effect as one originating in Scotland.

http://www.publicguardian-scotland.g...faqs/index.asp

[jenniferpa]

It would appear to be less than clear.

http://www.publicguardian-scotland.g...faqs/index.asp

search for England for the relevant sections. It sounds as if your best bet will be to get an English LPA and then, if necessary get it registered in Scotland.

On the other hand this link does give you a link to the public guardian office in england and it might be worthwhile contacting them.

[Moonflower]

Thank you for the replies
It doesn't seem clear does it? I originally tried the email address for the public guardian you've given here and I got the email bounced back as the address didn't work.

I thought there was a chance someone else here would have faced the same situation.
To make it more complicated, I can sort out a scottish POA myself, an English one means involving my brother.....

[jenniferpa]

Somehow it looks as if when they entered that email address, they changed the .gov part to .co. I think this is right: customerservices@publicguardian.gsi.gov.uk

Also, perhaps you might be wise to call alzcot - they may well be able to guide you.

http://www.alzscot.org/

[Moonflower]

Thank you so much Jennifer, I'll give that a try

[Moonflower]

Hi, just coming back with a quick update in case the information is useful to anyone else:
Alzcot don't know the answer

The revised email address you gave didn't bounce back so hopefully I'll hear from them.

Would it be ok if I posted this in the discussion section of TP in case anyone else has faced the same issue?

[jenniferpa]

Actually it's best if it stays here - this is the section for legal and financial questions and most people actually read all forums.

Have you found this link? http://forum.alzheimers.org.uk/searc...e=vBForum_Post

It's the New Posts link at the top of the page and is how many/most people access TP - it shows all new and updated threads since the last time you visited.

[jenniferpa]

I've had another thought - you could download and fill out both sets of forms and get them signed while she still has capacity (the scottish and the english ones) but not actually file them while you're getting guidance.

I'm not sure why you say you'll need to involve your brother if you go the english route - these forms are available as a packet from the guardianship people.

[Moonflower]

Many thanks Jennifer, you've been very helpful.

I'm really updating in case the information is useful to anyone else
The "new" email address worked and the public guardian's office were helpful. Basically an English POA is recognised in Scotland, but a Scottish one may not be recognised in England. Since mum's assets are in England I'm going to try to sort out an English one first.
I'm looking for a solicitor - hopefully not too far from Glasgow - who can do English law as well to sort the papers out. If anyone knows one please PM me...

The reason for involving my brother is that he was originally sorting all this out - he lives near my mother's old house. But she's been here since before Christmas and he hasn't done anything yet, so I'll get on with it. I'm trying not to post what I think of him.....

[jenniferpa]

You know strictly speaking you don't need a solicitor to do the forms? They can be downloaded and a lot of people fill them out themselves. They need care and attention to detail but it's definitely doable.

[Moonflower]

That's interesting - the solicitor I spoke to (the one my brother was dealing with )said I'd need a "certificate provider" and that they charge as much for providing a certificate as they would to do all the POA paperwork.

Maybe I'll have a look at the forms..... I'd be very nervous of messing it up though.

[jenniferpa]

Well you can have a professional certificate provider (like a solicitor or a doctor) or you can have a non-professional certificate provider (someone who has known her two years and isn't a relative).

I find what the solicitor said to be disingenuous to be honest: I don't know how much he was planning to charge to draw up the forms but I'm willing to bet that it was more than the £50 - £150 fees that people have paid to consultants and doctors.

[Moonflower]

That's really interesting. The psychiatrist who diagnosed mum's alzheimers said that I should get a POA quickly and he could say that she was compos mentis, so perhaps he was offering to be a certificate provider. Nobody here has known her for 2 years so it would have to be a professional.
I'll brace myself and have a look at the forms.

Thank you so much for your help on this Jennifer, it's made a real difference having somebody to "talk" to about it. I feel so responsible for mum's wellbeing.