Government clarifies position on Scottish LPAs

The Government has moved to clarify the legal position of Lasting Powers of Attorney made in Scotland, and their validity in England and Wales. 

Scottish National Party MP for Glasgow North Patrick Grady had written to Parliamentary Under-Secretary at the Ministry of Justice Mike Freer to query whether Lasting Powers of Attorney made outside of England and Wales, but in the United Kingdom, were valid in England and Wales.

The issue had been raised in response to issues Mr Grady had identified with third parties, such as banks, rejecting Scottish PoA’s. The suggestion that the Powers of Attorney Bill, currently making its way through Parliament could be amended, was rejected.

In a letter responding to the query Mr Freer confirmed that the legislation which recognised Scottish PoA’s in England and Wales already existed:

“Schedule 3, Paragraph 13 of the Mental Capacity Act provides that where an individual is habitually resident in another country to which England and Wales is a connected country (this would include Scotland) then, the law applicable to the power’s existence is the law of the other country (in this case Scotland). This means that if the correct process has been followed for the Power of Attorney to be created in Scotland, it would be legally recognised in England and Wales without the need for further action from either the Court of Protection or Office of the Public Guardian (OPG) for England and Wales.”

The letter, which can be read in full here, states that as the legislation already exists, no further legislative change to introduce greater recognition is necessary.

Rather,” added Mr Freer, “We need to ensure that institutions and organisations are aware of the legal status of Scottish Powers of Attorney in England and Wales.”

Responding to the letter, Law Society of England and Wales President Lubna Shuja said:

“There’s a need to increase awareness of the legal status of Scottish Powers of Attorney (PoA) in England and Wales.

We are pleased that the government has confirmed the clearly established position under the Mental Capacity Act 2005, which is that if a Scottish PoA is valid according to Scottish law (and has been registered with the Office of the Public Guardian Scotland), it is just as effective in England and Wales without any further steps being taken.

“This will help reduce the risk of institutions refusing to accept instructions from individuals acting under a Scottish PoA.”

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