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Is there a "Hard Border" for Powers of Attorney?

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Category: News
15 March 2019

Much of the recent Brexit negotiations have centred over the question of a “hard border” in Ireland, and the particular impact that such a boundary may have on the economy and the people of both the Republic of Ireland and the United Kingdom.  Whilst I cannot provide a solution for that particular question, I was recently asked by a client whether a similar border exists between Scotland and England and more specifically if a Scottish Power of Attorney could be used in England?

The position is at present that a Scottish Power of Attorney can be used in England or Wales if the organisation accepts its authority.  If that organisation does not accept its authority, things can become problematic.  The organisation can require an endorsement of the Scottish Power of Attorney from the English authority known as the Court of Protection.  Much of the Court of Protection’s work is governed by the Mental Capacity Act (2005) and regrettably that 2005 Act does not appear to allow for such an endorsement to take place.  It is acknowledged that this is a less than satisfactory position, and perhaps not what was intended.  It will require a change of primary legislation in England to rectify this situation, and whilst the authorities in England and Wales are aware of the problem, they have indicated that they will only seek to remedy this where there is a legislative opportunity to do so.

If you have a Scottish Power of Attorney, are now based in England, and are still capable, you may wish to consider completing an English Power of Attorney.  If capacity has been lost, then you may need to apply to the Court of Protection for a Deputyship Order.

What about this situation in reverse? The use of a non-Scottish Power of Attorney in Scotland is possible, providing that the organisation accepts its authority.  Again, if the organisation does not accept that authority, things can be more complicated.  The organisation may require some form of Scottish endorsement of the Power of Attorney but our incapacity legislation provides that a non-Scottish Power of Attorney is automatically valid in Scotland, and consequently there is no arrangement in our own legislation for having the foreign Power of Attorney formally endorsed.  The law in this area does lack clarity, but in the interim the Office of the Public Guardian (Scotland) has devised a Certificate of Recognition of foreign Powers of Attorney, and you can apply for that, and request that the Public Guardian (Scotland) confirms that the non-Scottish Power of Attorney is automatically valid and is accepted for use in Scotland.

The use of Scottish legal documents overseas, or foreign legal documents in Scotland can be a complex matter, and you should consult your solicitor and obtain detailed advice on these matters when appropriate to do so.

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