Many of us are aware of the importance of protecting ourselves in the event of our incapacity with a power of attorney. Some of us are also alive to issues that can arise in terms of our succession where we have connections with several different countries.
But how can we protect ourselves in the event of our incapacity when we have interests in more than one country? Would your Scottish power of attorney be recognised in another country? Is there anything that you can do to make sure it is? What if you have a foreign power of attorney but need to use it in Scotland? Is that possible?
1 Using a Scottish Power of Attorney in England or Wales
While a Scottish power of attorney can be used in England and Wales, in practice, some organisations will not accept it and may ask for it to be endorsed by English Public Guardian. This is problematic because the relevant legislation in England does not provide mechanism for any endorsement to be made. There is a process by which a declaration on the validity of a power of attorney can be sought from the English Court of Protection but the Office of the Public Guardian in England (the body responsible for registering powers of attorney there) recognises that the current position is undesirable and in need of review.
In light of this, if you are living in England and Wales or, have significant interests there, it would be sensible to sign an English power of attorney as well as a Scottish one. This will make matters administratively a lot easier in the event the document is needed at some point in the future.
2 Using a Scottish Power of Attorney outside of the UK: is this possible?
Each country will have its own laws – the first step is to establish what the relevant country’s requirements are. You may need to translate the document into the national language of the country concerned. It may also be necessary to have the Scottish power of attorney legalised or “apostilled” by the Foreign and Commonwealth Office before it will be accepted by foreign organisations.
As the UK has only ratified the Hague Convention on the Protection of Adults (2000) in respect of Scotland, only Scottish powers of attorney may be recognised by other countries that have also ratified the Convention (France, Germany and Switzerland).
Where you have interests in multiple jurisdictions, it is crucial that you take expert advice now about how these might be managed in the event of your incapacity.
3 Can a non-Scottish Power of Attorney be used in Scotland?
Non-Scottish powers of attorney are enforceable in Scotland. Again though, in practice organisations will not always recognise them and may insist on an endorsement of the document from the Public Guardian in Scotland. Like in England, there is no process for endorsement of Scottish powers of attorney under the relevant legislation, the suggestion being that non-Scottish powers of attorney are automatically enforceable in Scotland. The Office of the Public Guardian (OPG) in Scotland realises that the situation is not ideal and is seeking clarification of the law.
In the meantime, the OPG has devised an interim measure to help. This comes in the form of a certificate which can be found on their website and attached to the front of the non-Scottish power of attorney in the hope that organisations will give effect to them. It is acknowledged that this is only a temporary fix and that clarification of the law is the long term solution.
If you have significant interests in Scotland, it is crucial for you to take professional advice about the measures you should take now to ensure that your Scottish estate can be easily administered in the event of your incapacity.
Please get in touch with our team of incapacity specialists for a discussion on the solutions that will work for you.
On October 29, 2019