Power Of Attorney – Be Careful Where and Which

As with my recent article on wills, UK geography is a factor in other bits of law - and specifically the matter of Power of Attorney (I will use the label POA mostly from now on). Scotland has an individual jurisdiction and legal system on most matters of private law, and POA is one of those for sure.

You would not necessarily know this from a surf across the internet. I don’t make a nationalist point at all, but lawyers and companies in England often struggle to remember – and sometimes just don’t know – that their laws, institutions and practices stop at Carlisle. Indeed for those of you who remember my less than illustrious media career, I once had to present a BBC radio show (from Inverness as it happens) which involved a discussion around noisy neighbours and the law. as a guest to contribute, my producer had booked an English barrister, who when asked about a street rammy in Leith started to lecture us about some English Act of Parliament that had no bearing whatsoever on any part of Scotland. And on another occasion, I was able to circumvent an English court order banning broadcast of material about a then prominent politician – Cecil Parkinson – who had fathered a love child and secured a highly-criticised privacy injunction in the London High Court. BBC Scotland was not affected by this as the English lawyers had failed to get an interdict in the Scottish Court of Session, so publication in Scotland was unaffected.

Anyway, so much for ancient history. But it keeps repeating itself. There remains considerable misunderstanding about the differences between Scottish and English law, not least in POA. Perhaps that is made no easier by the fact that we in Scotland adopted the English wording for the instrument. Attorney is best known as an American term for a lawyer, and as with so many other facets of USA law, it was taken across the Atlantic in the days of North America being a British continental holding before the War of Independence. Even after the United States was set up, English legal language and customs stayed in place, to this very day.

But Attorney really just means Agent – someone who does something on someone else’s behalf, and a Power of Attorney is no more or less than a Grant of Agency (I still wish we had called it that when the law was updated in 2000). The fact that our language and procedures were created with a substantial nod to the system in England has in some ways (I guess) helped consistency, but in other ways has laid a few traps for the unwary.

A couple of specifics – in England they have the Lasting Power of Attorney. Our equivalent is the Continuing Power of Attorney. The Continuing POA is all about money and property. It is a grant of agency to allow a trusted person to pay bills, manage bank accounts, sell property and do a host of other things.

Our other form is the Welfare Power of Attorney. This covers personal care such as placement in a home, arranging nurses, consenting to medical treatment and a host of other essential matters for the Adult - as the person granting the POA is called. These can be separate POAs or put together (as is now usual) in one document, known here as a Combined Power of Attorney. In England as far as I can make out, the power of a Health and Welfare Attorney are simply a part of the range available in a Lasting Power of Attorney.

Scottish procedure is set out and governed by the Adults With Incapacity (Scotland) Act 2000. Which covers only Scotland, and is suitable for Adults who live in Scotland and/or are to be treated and cred for here. That said, Scottish POA’s are recognised beyond this country, but it may involve additional procedure – even in court - if someone moves north or south.

To quote from the Office of the Public Guardian (Scotland)’s website:

Office of the Public Guardian (Scotland) (publicguardian-scotland.gov.uk)

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.

The Office of the Public Guardian (Scotland) itself is another cause for potential confusion. People including solicitors routinely talk about “the OPG” as an acronym. But England and Wales have a body with a similar name, so for the uninitiated it is easy to confuse the two, or assume it is all one organisation. But although both do roughly similar jobs locally, they are separate institutions working under different legal regimes and standards.

There isn’t space to go into all the detail of difference – suffice to say, that in terms of mental health law, capacity to act, procedural steps and the actual wording of documents, there is a considerable distance between POAs of different jurisdictions in the UK, and it is essential to make the right choice when creating a POA.

The fundamentals, for anyone in Scotland or using a Scottish POA, are that it allows you to appoint someone trusted and competent to act for you if you fall ill or lose mental capacity in future. Best to appoint more than one person in case the attorney chosen is unavailable when the time comes (if a husband appoints a wife and vice versa, they may end up in the same car accident!). And though you may think, or just hope, you will never need the services of an attorney, 2020 has proved, if proof were needed, that none of us can predict the future. 

When making a POA, before it is registered with the OPG it has to be certified by a suitable professional – usually a solicitor, as it is a solicitor who is best to actually draw it up after advising and consulting with you. The certification confirms that the person signing the POA is competent and knows what they are doing. This avoids nefarious activity of a miscreant taking power of attorney over a vulnerable or older person to get at their property or money.

Power of Attorney is an important piece in the jigsaw of adult life. It may never be needed if dementia or other incapacity don’t occur. But if it is not done in time, then once the Adult has lost the ability to look after themselves, the lack of a POA makes it necessary for someone – family or God Forbid the local social work department, to apply to court for Guardianship , an order also under the Adults With Incapacity Act but very complex, intrusive and expensive to obtain.

Choice of jurisdiction for POA is likely to be crucial, so it is certainly advisable to seek guidance from your solicitor before embarking on the process.

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