The growing difference in powers of attorney between Scotland, England and Wales

A recent update from the Scottish Office of the Public Guardian has thrown into stark relief one of the many crucial differences between Powers of Attorney in Scotland and those in England & Wales.

The new Scottish guidance

On 1 May, the Scottish Office of the Public Guardian (Scottish OPG) issued new guidance on the interpretation of certain key words and phrases in Scottish Powers of Attorney (POAs). The guidance clarified the Scottish OPG's position in three key areas:

1. POAs that are ambiguous as to whether the appointment of attorneys is 'joint' (i.e. they must all act together) or 'joint and several' (i.e. they may act independently) will be interpreted by the OPG as containing a joint appointment.
   
2. Where attorneys are appointed jointly, the POA will not be invalidated by the death, incapacity or resignation of an attorney. In all cases, the remaining attorney(s) will be able to continue to act, although following a resignation the remaining attorney(s) must expressly confirm their willingness to do so.
   
3. The interpretation of two common phrases used in Scottish POAs was clarified, namely:
   
   1. an appointment of named attorneys 'or the survivor' will be interpreted as meaning that the POA is able to continue uninterrupted following the death, incapacity or resignation of an attorney, with the remaining attorney(s) acting; and,
      
   2. an appointment of named attorneys 'each of them alone or the survivor' will be interpreted as creating a joint and several appointment (i.e. the attorneys can act independently from each other).

Importantly, the new guidance applies retrospectively, to those POAs that have already been registered by the OPG and those which will be registered in future.

The stated aim of the guidance is to remove the uncertainty which currently exists around the appointment of multiple attorneys, something that can be particularly difficult in the situation where the granter (the person making the POA) has lost capacity and is no longer able to amend the POA. The new guidance should considerably help both solicitors and their clients, avoiding the upsetting circumstances where a POA cannot be amended and the original granter is left without an attorney to manage their affairs at the very time when they need it the most.

The contrast with the position in England & Wales

To Scottish readers, the new guidance is principally a useful and pragmatic clarification of the OPG's position. To those of us also practising in England & Wales, however, it highlights one of the many stark contrasts between how the two jurisdictions approach matters of adult incapacity.

It is clear from even a cursory look at the forms of POA north and south of the border that they are governed by entirely different statutory frameworks – the free-flowing Scottish POA looks nothing like the English equivalent Lasting Power of Attorney (LPA), which is required to be executed in a different manner, by a greater number of parties However, the recent Scottish OPG guidance illustrates another key difference between the two.

In England and Wales, the position on the death of a joint attorney is, quite simply, that the LPA is cancelled. There is nothing open to interpretation or argument; the OPG will simply ask for the return of the original LPA, notify all parties by letter, and dispose of the document. If the donor (the English equivalent of the Scottish granter) has lost capacity by that point, they will not be able to make another LPA and the only option for those closest to them will be to undertake the lengthy – and expensive – process of applying for a deputy to be appointed by the court.

It will no doubt come as a surprise to many that the positions taken by the courts of two such closely neighbouring jurisdictions are so different. For those of us working across the border on a daily basis, this is just one example of many. The key point, for those with assets in multiple jurisdictions, is to take expert advice early.

We frequently advise clients with assets in different jurisdictions on the most appropriate POA for their circumstances – and sometimes the answer is multiple POAs, for practical reasons if nothing else. This new guidance serves to illustrate just one of the many real-life differences that can have lasting implications for the makers of POAs and their families.