Power of Attorney Scotland vs England: Key Differences Explained
Power of Attorney Scotland vs England: Key Differences Explained
If you live in the UK, you might assume that Power of Attorney works the same everywhere. It does not. Scotland has its own entirely separate legal system for Power of Attorney, with different forms, different terminology, different registration bodies, and different costs.
This guide explains the key differences between the two systems, helping you understand which applies to you and what you need to do to protect yourself and your family.
The Fundamental Difference
England and Wales use Lasting Powers of Attorney (LPA), governed by the Mental Capacity Act 2005 and registered with the Office of the Public Guardian (OPG) in Birmingham.
Scotland uses Continuing Powers of Attorney and Welfare Powers of Attorney, governed by the Adults with Incapacity (Scotland) Act 2000 and registered with the Office of the Public Guardian (OPG Scotland) in Falkirk.
Despite sharing the name "Office of the Public Guardian," these are entirely separate organisations with different processes, different forms, and different fees.
Types of Power of Attorney Compared
Both systems provide for financial and welfare decisions, but the terminology and structure differ:
England and Wales:
Scotland:
In Scotland, both types can be included in a single document, which simplifies the process. In England and Wales, they must be two separate documents.
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Registration Process Compared
England and Wales:
- LPAs are registered with the OPG in Birmingham
- You submit the LPA form with the registration fee
- Current processing time: 8 to 12 weeks
- The LPA can only be used once registered
- Registration can be done by the donor, attorney, or both
- Powers of Attorney are registered with the OPG Scotland in Falkirk
- A solicitor must certify the document before registration
- Registration is required before the power can be used
- The OPG Scotland processes registrations (typically 4 to 8 weeks)
- The solicitor requirement means you must use a legal professional
Cost Comparison
The costs of creating Power of Attorney differ significantly between the two jurisdictions:
England and Wales (LPA):
| Item | Cost |
|---|
| LPA preparation (myLPA) | £74 per LPA |
| OPG registration fee | £82 per LPA |
| Both LPAs with myLPA | £140 + £164 registration |
| Solicitor preparation (if used) | £300-£500 per LPA |
| Item | Cost |
|---|
| Solicitor fees | £250-£600+ |
| OPG Scotland registration fee | £85 |
| Certification fee | Included in solicitor fees |
| Total for both types | £350-£700+ |
Who Can Create Each Type?
England and Wales:
- Anyone aged 18 or over with mental capacity
- The donor must have an address in England or Wales (or the LPA must relate to property/finances in England or Wales)
- No solicitor required
- Anyone aged 16 or over with mental capacity (note the younger age threshold)
- The granter (equivalent of donor) must be resident in Scotland or the POA must relate to Scottish property
- A solicitor or practising member of the Faculty of Advocates must certify the document
Choosing Attorneys
England and Wales — you appoint attorneys:
- Must be 18 or over
- Must have mental capacity
- For Property and Financial Affairs: must not be bankrupt
- Can appoint multiple attorneys to act jointly, severally, or a combination
- Can appoint replacement attorneys
- Must be 16 or over
- Must have mental capacity
- Similar rules about bankruptcy
- Can appoint more than one
- Can appoint substitute attorneys
- The welfare attorney is sometimes referred to informally as a welfare proxy
Certificate Provider vs Solicitor Certification
One of the biggest practical differences is how each system ensures the person creating the document understands what they are doing:
England and Wales — Certificate Provider:
- A person who either knows the donor personally for at least two years or has relevant professional qualifications
- Confirms the donor understands the LPA and is not being pressured
- Does not need to be a solicitor
- No cost if using a personal acquaintance
- A practising solicitor or advocate must certify the document
- The solicitor must interview the granter
- The solicitor confirms the granter understands the document and is not acting under undue influence
- The solicitor must be satisfied the granter has capacity
- This always involves a cost
When the Powers Can Be Used
England and Wales:
*Property and Financial Affairs LPA:*
- Can be used as soon as it is registered, even if the donor still has capacity (with their consent)
- Useful for practical convenience, such as when the donor is abroad or physically unable to get to the bank
- Can only be used when the donor lacks capacity to make the specific decision in question
*Continuing Power of Attorney:*
- Can be used as soon as it is registered
- Like the English equivalent, it can be used while the granter still has capacity
- The granter can specify when the power should come into effect
- Can only be used when the granter is incapable of making the relevant decision
- Similar to the English Health and Welfare LPA
Supervision and Safeguards
Both systems include safeguards, but they operate differently:
England and Wales:
- The OPG supervises attorneys
- Anyone can raise a concern about an attorney with the OPG
- The Court of Protection can investigate and revoke an LPA
- No automatic supervision visits (unlike deputyships)
- OPG Scotland has more active supervisory powers
- Local authorities have a duty to investigate concerns
- The Sheriff Court can investigate and revoke a POA
- OPG Scotland can require attorneys to submit accounts
- The Mental Welfare Commission for Scotland provides additional oversight for welfare decisions
Cross-Border Issues
What happens if you have family on both sides of the border? Or if you move?
If you move from England to Scotland:
- Your English LPA does not automatically apply in Scotland
- Scotland may recognise it in practice, but this is not guaranteed
- Best practice: create a Scottish POA as well
- Your English LPA remains valid for English affairs
- Your Scottish POA may be recognised in England, but not all organisations will accept it
- Best practice: create an English LPA as well
- Your Scottish POA remains valid for Scottish affairs
- You should ideally have both an LPA and a Scottish POA
- English financial institutions will prefer an English LPA
- Scottish financial institutions and public bodies will prefer a Scottish POA
- Consider which country most of your financial and health affairs are based in
- If your GP is in Scotland but your bank is in England, you may need both
Revoking or Cancelling
England and Wales:
- The donor can revoke the LPA at any time while they have capacity
- Written revocation is recommended
- Notify the OPG to cancel the registration
- If the LPA has been used, notify all relevant organisations
- The granter can revoke the POA at any time while they have capacity
- Written revocation must be registered with OPG Scotland
- The revocation takes effect on registration
- More formal process than in England
How the Court Systems Differ
If there are disputes or problems:
England and Wales: The Court of Protection handles all LPA-related matters, including:
- Challenges to capacity
- Removal of attorneys
- Interpretation of LPA provisions
- Deputyship applications (when there is no LPA)
- Challenges to capacity
- Removal of attorneys
- Interpretation of POA provisions
- Guardianship applications (when there is no POA)
Which System Is Better?
Neither system is objectively better — they each have advantages:
English LPA advantages:
- Cheaper (no solicitor required)
- Simpler to create (online services like myLPA)
- More flexible registration process
- Faster and more affordable
- Solicitor involvement provides an extra safeguard
- Can combine both types in one document
- Stronger ongoing supervision
- Available from age 16 rather than 18
Northern Ireland: A Third System
It is worth noting that Northern Ireland has its own separate system as well:
- Uses Enduring Power of Attorney (the old English system)
- Governed by the Enduring Powers of Attorney (Northern Ireland) Order 1987
- A new Mental Capacity Act (Northern Ireland) 2016 is being implemented, which will bring changes
Frequently Asked Questions
Is Power of Attorney the same in Scotland and England?
No. Scotland uses Continuing Power of Attorney and Welfare Power of Attorney under the Adults with Incapacity (Scotland) Act 2000. England and Wales use Lasting Powers of Attorney under the Mental Capacity Act 2005. They are separate legal documents registered with different bodies.Can I use a Scottish Power of Attorney in England?
It may be recognised in practice, but not all organisations will accept it. If you have significant affairs in England, creating an English LPA as well is strongly recommended.Do I need a solicitor for Power of Attorney in Scotland?
Yes. In Scotland, a solicitor or advocate must certify the Power of Attorney document. This is a legal requirement. In England and Wales, no solicitor is required — you can use an online service like myLPA.How much does Power of Attorney cost in Scotland?
Typically £350 to £700 or more, including solicitor fees and the OPG Scotland registration fee of £85. In England and Wales, you can create an LPA for as little as £74 with myLPA plus the £82 OPG registration fee.Which is cheaper — LPA in England or POA in Scotland?
LPA in England is significantly cheaper because you do not need a solicitor. With myLPA, an LPA costs just £74 compared to £250 to £600+ in solicitor fees for a Scottish POA.I live in England but my parent lives in Scotland. What do I need?
Your parent needs a Scottish Power of Attorney, created with a Scottish solicitor. If they also have financial affairs in England, an English LPA may also be helpful. You should also consider your own LPA for your affairs in England.Can my attorney in Scotland also act in England?
A Scottish attorney may face difficulties acting with English organisations. It depends on the specific organisation. Having both a Scottish POA and an English LPA with the same attorney named provides the most comprehensive cover.---
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