Power of Attorney (“POA”) is a legal document which appoints one or more people (known as attorneys) to take actions or make decisions on your behalf. You must be over the age of 16 and capable of making your own decisions to be able to grant a POA in Scotland. In England, you must be over the age of 18 to put in place a POA. Individuals can choose to grant POAs for continuing (financial) and/or welfare matters, often combining the two into one deed. A similar regime operates in England and Wales, whereby POAs are known as Lasting Powers of Attorneys (“LPAs”) and individuals can appoint attorneys to act in relation to their financial and/or health affairs.
Clients are often surprised to hear that a financial POA or LPA will generally take effect immediately on registration with the Office of the Public Guardian and empowers your attorneys to act even when you still have capacity, albeit in such circumstances only with your express authority. This can be extremely beneficial if, for example, you travel abroad frequently for business or leisure, and you need someone in the UK to manage your affairs. So long as you retain capacity, it does not preclude you from dealing with your own affairs at any time.
In contrast, a welfare POA or LPA only takes effect when an individual is deemed to have lost mental capacity, and the criteria for determining this will generally be set out within the terms of the deed in Scotland and in accordance with the Adults with Incapacity (Scotland) Act 2000, or in England by reference to the Mental Capacity Act 2005.
It is possible to grant a non-continuing Power of Attorney in Scotland, or a General Power of Attorney in England. This form of POA does not need to be registered with the Office of the Public Guardian, does not require a Certificate of Capacity, and takes effect immediately. However, non-continuing POAs and General POAs can only grant financial powers and will cease to be effective should you lose mental capacity.
The easiest way to put in place a POA is to do so whilst present in the UK, particularly as, in Scotland, a continuing or welfare POA requires that a Certificate of Capacity be completed, either by a solicitor holding a Scottish practising certificate or by a registered UK doctor. This can clearly be difficult for those who live permanently outside Scotland. However, legislation introduced during the coronavirus pandemic in 2020, has helped in this regard, by allowing for execution of the Certificate of Capacity to be dealt with by remote video connection. The requirements for granting LPAs in England are much less stringent, with someone who has known the granter for at least two years being able to act as the certificate provider. There is, however, a list of those who cannot act as a certificate provider, including the attorneys, family members of the granter and attorneys, and business partners and employees of the granter and attorneys.
Whether north or south of the border, unless the POA is a non-continuing POA or a General POA, the deed will need to be registered with the respective Office of the Public Guardian before your attorneys have authority to act, which can take a considerable amount of time. It can sometimes be helpful to execute a non-continuing POA or a General POA as a “stopgap” while the continuing POA or LPA forms are undergoing registration. In Scotland, if there is an urgent need to register the POA, then the registration process can be expedited.
Each country will have its own position on whether a POA can be used outside the UK, and it is important to first establish what the country’s requirements are. It might, for example, be necessary to arrange for your POA to be “legalised” or “Apostilled” by the UK Foreign and Commonwealth Office.
Scotland is a contracting State to the Hague Convention on the International Protection of Adults 2000 (the Convention). Article 38 of the Convention stipulates that where an individual can present evidence of a registered POA in the form of a certificate indicating the capacity of the relevant individual to act and the powers conferred on them, this capacity is presumed to have vested in that person in the absence of proof to the contrary. The Certificate of Registration that is issued and signed by the Scottish Public Guardian is understood to meet the requirements of Article 38 of the Convention. Article 41 of the Convention forgoes the need to legalise or apostille documents forwarded or delivered under the Convention.
Unlike Scotland, England and Wales have not formally ratified the Convention, although the Mental Capacity Act 2005 specifically gives effect to the Convention.
Murray Beith Murray solicitors specialise in dealing with all aspects of Powers of Attorney, whether you are resident in Scotland or not. If this article has raised any questions or you would like to discuss your affairs, then please call us on 0131 225 1200 or complete our enquiry form.
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