Is English Power of Attorney accepted in Scotland?

[northumbrian_k]

My wife has an investment account with a well-known Scottish-based financial institution. I am just off the phone to a pleasant lady at the organisation's HQ at Edinburgh. She wasn't very clear about the Lasting Power of Attorney (LPA) granted to me under English law and how I might use this to operate my wife's account on her behalf. She has given me an address to write to but no other instructions or guidance.

I am happy to draft a letter and enclose a certified copy of the LPA but have read on the web site of the Office of the Public Guardian (Scotland) that:

"A non-Scottish PoA can be used in Scotland if an Organisation (e.g. a bank) accepts its authority but if they do not things are more complicated. The Organisation may require some form of Scottish endorsement of the PoA but interpretation of the Scottish legislation suggests a non-Scottish PoA of is automatically valid in Scotland and consequently there is no arrangement under the law for having it formally endorsed. The law in this area lacks certainty; we are seeking to have this clarified

As an interim measure, we have devised a Certificate which can be printed and presented along with the PoA. This may assist in getting a non-Scottish PoA accepted in Scotland."

Printing and enclosing the said certificate may help but it seems by no means certain that it will..

My question is whether anyone on Dementia Talking Point has any experience of using an English LPA in Scotland?

 

[marionq]

I don’t know the answer to this one but it is really important to know if it would be accepted here and vice versa.

Perhaps you could keep us posted on developments?

 

[jugglingmum]

This is the section that @northumbrian_k has found.

As far as I understand the law it would relate to assets in the relevant country, not where the person is resident.

I am interested in the vice versa position as my MIL is resident in Scotland with a Scottish made POA but has assets in England.

I think the person on the phone might not be as knowledgeable as a person dealing with it in the office, so suggest you send your letter off and see what happens.

Using your PoA in Scotland or England
Q. Can a Scottish PoA be used in England?
A. The Mental Capacity Act 2005 (MCA) is the relevant legislation. One needs to draw a distinction between power of attorney and guardianship (called deputyship under the MCA) as the ‘rules’ are quite different. 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 does not appear to allow for such an endorsement. It is recognised that this is an unacceptable position and perhaps not what was intended. It will require a change to the primary underpinning legislation (the MCA) to rectify this situation. The authorities South of the Border are aware of the problem and have indicated that they will seek to remedy this when there is a legislative opportunity. The Register of international measures provides further information.

If you are now based in England or Wales and are still capable you may wish to consider doing an English/Welsh PoA. If capacity has been lost someone will need to apply to the Court of Protection for deputyship.

If the incapable person is now in England or Wales and you are seeking to rely on a Scottish guardianship order to support them please see the relevant response.

If you need more information about the English system or how best to proceed in England please contact the Office of the Public Guardian for England & Wales, telephone: 0300 456 0300 e-mail: customerservices@publicguardian.gsi.co.uk


Q. Can a non-Scottish PoA be used in Scotland?
A. A non-Scottish PoA can be used in Scotland if an Organisation (e.g. a bank) accepts its authority but if they do not things are more complicated. The Organisation may require some form of Scottish endorsement of the PoA but interpretation of the Scottish legislation suggests a non-Scottish PoA of is automatically valid in Scotland and consequently there is no arrangement under the law for having it formally endorsed. The law in this area lacks certainty; we are seeking to have this clarified.

As an interim measure, we have devised a Certificate which can be printed and presented along with the PoA. This may assist in getting a non-Scottish PoA accepted in Scotland.

If you need more information generally or about how best you might proceed in a given case please contact e-mail the Public Guardian for Scotland: opg@scotcourts.gov.uk

 

[Blackcat20]

I had a Scottish POA (covering both finance/property and health/welfare) for my mother, who moved to a care home in England for the last year of her life. During this time I sold her house in Scotland, and made a range of investments on her behalf with English banks and building societies. I was aware that the Scottish POA might not be accepted for the reasons relating to the MCA (2005) quoted above in this thread, but I found in practice that all the English financial institutions did accept it without question, as did the English care home, solicitor, local authority, GP and various hospitals. I used both Scottish and English solicitors (who specialised in legal matters for the elderly and “cross-border placements” into residential care) to handle various aspects of my mother’s affairs, and they both said that in their experience it was - in practice - usual for POAs/LPAs to be accepted across Scotland/England, despite the technicalities of the legal position.

 

[marionq]

@Blackcat20 - good to see common sense prevailing.

 

[northumbrian_k]

I think that you are right @jugglingmum - it is where the assets are held that matters. Your reply is very helpful @Blackcat20. I'll give an update on how I get on but I have the small matter of a cycling holiday to see to first!

 

[jugglingmum]

I think there's a difference between assets such as a house or antiques located in Scotland and an investment in a Scottish company that also trades in England. But I'm sure Northumbrian_K will find a definitive answer for us - at least for one firm.

I was actually thinking of financial assets, as to me the word asset relates to all of a person's possessions whether financial instruments or physical assets.

All financial instruments (stocks/shares/funds/investments/bank accounts) will have a country in which they are deemed 'resident'/controlled and if it is a Scottish HQ then it is likely to be deemed resident in Scotland. If a company is registered in Scotland it operates under Scottish law, not English, with it's constitution (articles and memorandum) being in the form required in Scottish law. Given that Northumbrian K is dealing with someone in Edinburgh I think the asset in question is likely to be deemed Scottish, not English.

In my MIL's case she has a portfolio with an English stockbroker, so this makes them English assets from a POA point of view.

 

[northumbrian_k]

I have solved this very easily but not in the way that I expected. The Scottish financial institution for bereaved ladies is part of the English banking group that holds my wife's current account. I was sort of aware of this but had forgotten. Registering my Power of Attorney with the horsey bank this afternoon has also covered registration with the aforesaid financial institution. It will take a few days to process but should be in place when I get back from holiday.

 

[charlie10]

Hi northumbrian.....very glad you've solved it so quickly.....not many things to do with caring have such an easy answer love your bank 'names' btw, made me feel nostalgic