Power of Attorney: The process in Scotland

You may have read news reports over the past week about the proposed changes to the Power of Attorney system in England & Wales. The Ministry of Justice have launched a 12-week consultation to review the current process and explore a number of new proposals aimed at modernising the system.

What is a Power of Attorney?

A Power of Attorney is a legal document which authorises one or more people to act on your behalf, should you require assistance. There are different types of Power of Attorney, covering your financial affairs, welfare or both. Although there are broad similarities with how Powers of Attorney operate across the UK, the main point to note here, from a Scottish perspective, is that Powers of Attorney in England & Wales differ to those in Scotland, are governed by different legislation and are overseen by separate Offices of the Public Guardian (the body that deal with the registration of Powers of Attorney).

Going digital?

The current process for registering a Power of Attorney in England & Wales has largely stayed the same since 2007. It is a paper-based process which has led to long delays in registration, particularly over the past 18 months during the pandemic, with no acceptable digital alternative currently available. With individuals often not making a Power of Attorney until later in life, this can lead to them being left with no Attorney to assist them for a number of months whilst the registration takes place.

The new proposals suggest that the registration process becomes predominately digital, to simplify and speed up the process. There are also a range of other matters being considered, such as whether a Power of Attorney will still require to be witnessed at the time of execution, whether a “fast track” registration route should be implemented, whether digital signatures should be accepted and what additional measures may be required to prevent fraud and abuse.

What does this mean in Scotland?

Adoption of any of the above noted proposals will be interesting to follow, as the Scottish Power of Attorney system has faced its own issues with delays over the past 18 months. Despite the Scottish Office of the Public Guardian having had a digital registration process for a number of years, it is currently taking around five months for a Power of Attorney to be registered.

Although the Scottish process is slightly more modern in that the registration element is digital and we already have a “fast track” route for urgent registrations, it is still a requirement in Scotland that a paper copy of the Power of Attorney Deed must be signed in wet ink by the individual, in front of a witness and a Doctor or Solicitor. The witnessing rules have been relaxed during the pandemic to allow for video calls to be used for these purposes, but it has highlighted the need to consider whether the current process is fit for the digital age. In particular, the issue of why a digital signature is not valid is one that surprises many individuals, given the wide use of these by consumers in everyday life now.

Any proposals that are to be adopted after the consultation period ends in England & Wales will not necessarily mean that change will come around quickly. Any changes to the current system will require amendments to be made to the Mental Capacity Act 2005, which would take a number of months. Amending that Act will of course have no effect in Scotland, as Scottish Powers of Attorneys are governed by the Adults with Incapacity (Scotland) Act 2000, but we will look on with interest as any changes may be compared with the Scottish system in any future review here.

 

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