Fun Fact! Did you know that you can make a Will at the age of 12 in Scotland?
There are quite a few variations in the law when you head north of the border, and it is important to remember that Scotland is a separate legal jurisdiction. As such, careful consideration should be given to any Scottish connection when making Wills or Lasting Powers of Attorney which may be used in Scotland.
The first question is: can your English Lasting Powers of Attorney be used to deal with Scottish assets? The Office of the Public Guardian (Scotland) have confirmed that foreign Powers of Attorney (and yes that does include English POA) are acceptable, in their view, however there is some ambiguity in the law. As a result, not all Scottish authorities accept foreign POAs. To assist, the OPG (Scotland) have produced a certificate of validity which can be downloaded from their website and provided to Scottish organisations as evidence of validity.
If you are a deputy under a Court of Protection order then additional thought will be needed, particularly if there is any intention for the incapacitated person to be moved to Scotland. A deputy’s authority is derived directly from the court and so may not extend to another legal jurisdiction where English courts are unable to monitor compliance.
Having a Scottish connection can have some slightly peculiar results in relation to Wills. For example, Scottish law contains elements of forced heirship rules. If you own land in Scotland, or are treated as domiciled in Scotland then you may be caught by these rules. Your domicile can depend on your parent’s (specifically your father’s) domicile and so those of Scottish descent need to take extra care.
It is therefore important to disclose any Scottish connection when giving instructions for a Will.
If you have assets in Scotland and have any questions about their succession after your death, or the use of Lasting Powers of Attorney to manage them during your lifetime, then do not hesitate to contact any member of our Wealth Management team.