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 become a time when we have to rely on someone else to make those important decisions for us.
But if you have interests abroad, including interests in other parts of the United Kingdom, would your Power of Attorney arrangements be recognised by that other jurisdiction and are there further steps you should be taking, whilst you are able to do so?
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.
In order to ensure that your attorney can carry out business on your behalf without difficulty, where you have financial interests in England, you should consider the possibility of putting in place a Lasting Power of Attorney in England and Wales.
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 to have the document 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 organisation or organisations which you will need to recognise the Power of Attorney.
Specialist legal advice should be sought in the appropriate jurisdiction.
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 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 be 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.
For more information and advice on Powers of Attorney, call 0131 225 1200 to speak with one of our specialist solicitors.
Murray Beith Murray have a number of dual qualified solicitors (Scotland and England/Wales) and are able to advise on Power of Attorney issues both North and South of the border.