The Ministry of Justice has ruled out amending a government-backed private member's bill modernising the lasting powers of attorney process to clarify the legal status of lasting powers of attorney made in Scotland.
The Powers of Attorney Bill will allow LPAs to be made completely online. The bill has completed its passage through the House of Commons and is awaiting second reading in the House of Lords.
During a parliamentary debate last month, the Scottish National Party’s Patrick Grady highlighted ‘mutual recognition’ issues north and south of the border.
‘Many of us, myself included, have had constituency casework related to the complications that can arise when a family is in one part of the United Kingdom but care is being received or properties have to be managed in another part of the United Kingdom,’ Grady said.
Replying to a further email from Grady about mutual recognition problems, justice minister Mike Freer said the Mental Capacity Act allows for the recognition of Scottish powers of attorney in England and Wales.
‘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 for England and Wales.’
Freer acknowledged that despite legislation being in place, 'the experience of those with Scottish powers of attorney continues to be that third parties, such as banks, often reject these powers'.
However, the minister was not persuaded that further legislative change is needed. ‘Rather I believe this is a matter of education and awareness. We need to ensure that institutions and organisations are aware of the legal status of Scottish powers of attorney in England and Wales.’
The Powers of Attorney Bill is a private member’s bill sponsored by Conservative MP Stephen Metcalfe that has been backed by the government.
‘Amending a private member’s bill is inherently risky at this late stage due to the very limited time available on a sitting Friday to debate such amendments,’ Freer said. ‘This is amplified in the Lords when amendments are usually fatal to a PMB as there is no time for amendments to come back to the Commons to be agreed in “ping pong”.’
Law Society president Lubna Shuja welcomed the letter.
‘We are pleased that the government has confirmed the clearly established position under the Mental Capacity Act 2005, which is that if a Scottish power of attorney 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 power of attorney.’
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