Frameworks for adults who lack capacity in England and Wales and Scotland

Who should read this information note?

This information note is for solicitors in England and Wales and Scotland who may need to understand:

• the core provisions relating to mental capacity and incapacity law in the other jurisdiction to that in which they practise
• the key differences between the two jurisdictions
• key considerations relating to cross-border issues involving the two jurisdictions

The purpose of this information note, is to give solicitors a basic practical starting point in such cases, but should not be relied upon as legal advice.

As cross-border matters are complex and specialist, solicitors should not advise without consulting the appropriate legal resources and obtaining advice from a specialist in the relevant jurisdiction (see section 9.)

For solicitors in England and Wales, it should be read alongside our guidance on mental capacity: international aspects.

The guidance gives more detail on cross-border matters involving England and Wales more generally.

What is the issue?

The law relating to mental capacity (in England and Wales) and incapacity (in Scotland) is not the same.

While there are superficial similarities, there are also significant differences.

Solicitors who are advising clients who may move between England and Wales and Scotland, or who have property in both jurisdictions, need to be aware of the main differences.

They also need to be aware of practice issues that may arise when clients’ interests require protection either side of the border, either in advance of the loss of capacity, or after they have lost capacity.

The law in Northern Ireland is different and not covered in this note.

Terminology

Mental Capacity Act 2005 (MCA 2005)

The MCA 2005 contains the framework in England and Wales that allows decisions to be made and acts to be done on behalf of those aged 16 or over who lack mental capacity to make a decision in relation to their property and financial affairs and/or their personal welfare.

For those aged 16 and 17, that framework coexists with other decision-making frameworks based upon the decision-making authority of those with parental responsibility.

This information note does not address those parallel frameworks.

The MCA 2005 is supported by a statutory Code of Practice (see 9.1 below).

Mental capacity in the MCA 2005 is defined on a functional basis as an inability to:

• understand relevant information
• retain relevant information
• use or weigh relevant information as part of the decision-making process, and/or
• communicate a decision by any means

where such inability is caused by an impairment of or disturbance in the functioning of the mind or brain.

Principles

All decision makers must follow the core principles of the MCA 2005:

• a person aged 16 or over must be assumed to have capacity unless it is established that they lack capacity
• a person is not to be treated as unable to make a decision unless all practicable steps to help them have been taken without success
• a person is not to be treated as unable to make a decision merely because they make an unwise decision
• an act done or decision made for or on behalf of a person who lacks capacity must be done or made in their best interests
• before the act is done or the decision is made, regard must be had to whether the purpose for which it is needed can be effectively achieved in a way that is less restrictive of their rights and freedom of action

All decisions, whether they are in respect of a person's property and financial affairs, or health and welfare, must be in their best interests.

The process to be followed is set out in section 4 MCA 2005 and includes a requirement to take the following steps:

• consider if the person might gain or regain capacity to be able to make the decision for themselves
• permit and encourage the person to participate in the decision being made, as fully as possible
• rake into account the person’s past and present wishes, feelings, beliefs, values and other factors they would consider, if they were able, and
• consult people named by the person, the person’s carers, attorneys, deputies and anyone interested in the person’s welfare as to what would be in the person’s best interests

Advance planning

A person aged 18 or over can appoint an attorney under a lasting power of attorney with the power to make decisions either as to health and welfare or their property and financial affairs (or both, if two powers of attorney are granted), if they have capacity to do so (see 3.1.2 below).

A person aged 18 years or over can make an advance decision to refuse medical treatment which, if valid and applicable, serves as an absolute bar to the provision of the treatment that it covers.

Court decision-making

The Court of Protection can make a standalone decision as to whether a person aged 16 or over has or lacks the mental capacity to make a particular decision(s) in respect of their property and financial affairs or health and welfare.

If it decides they lack capacity, it can then go on either to decide on behalf of the individual or appoint a deputy as a proxy decision-maker.

The process is governed by the Court of Protection Rules 2017 and associated practice directions

Office of the Public Guardian (England and Wales)

The Office of the Public Guardian of England and Wales (OPG (EW)):

• registers lasting powers of attorney
• maintains the registers of powers of attorneys and deputies
• supervises deputies, and
• investigates concerns against registered attorneys and deputies

Informal decision-making for care and/or treatment

Outside the formal mechanisms of deputyship and attorneyship, under section 5 MCA 2005, it is possible for others to undertake acts in relation to the care and/or treatment of a person aged 16 or over who is reasonably believed to lack mental capacity to consent.

This would otherwise amount to a criminal or tortious act if they were carried out in the face of their capacitous refusal.

The person carrying out the act will be protected from liability if they reasonably believe that they are acting in the person’s best interests.

Anyone seeking to rely on section 5 MCA 2005 should not operate in isolation and should consult any health and welfare attorney or welfare deputy who has been appointed if it is practicable and appropriate.

If the health and welfare attorney or welfare deputy refuses consent to the care and treatment, the person should not undertake the act of care and treatment, as they will be personally liable.

The only exception is in relation to life-sustaining treatment, as a welfare deputy can never refuse consent to that on behalf of the person (see 5.1 below.)

Deprivation of liberty

The MCA 2005 contains a framework for the administrative authorisation of deprivation of liberty (in accordance with article 5 of the European Convention on Human Rights) where it is required to enable the care or treatment of the person.

That framework is contained in Schedule A1 MCA 2005 (the Deprivation of Liberty Safeguards) and is limited solely to care homes and hospitals.

In all other situations, a court order will be required.

Adults with Incapacity (Scotland) Act 2000 (AWIA 2000)

The AWIA 2000 contains the framework in Scotland for decisions to be made and acts to be done in relation to the property and financial affairs and/or the personal welfare of adults (defined as people aged 16 or over) who are mentally incapable of doing so themselves.

By contrast to England and Wales, there is no parallel decision-making authority for those with parental responsibility in relation to those aged 16 and 17.

The Scottish government has published several Codes of Practice (see section 9.1).

The Scottish government committed in 2023 to reforming aspects of the AWIA 2000.

For updates, see Mental Health and Capacity Reform: delivery plan October 2023 to April 2025.

For purposes of the AWIA 2000, ‘incapable’ means (factually) incapable of:

• acting
• making decisions
• communicating decisions
• understanding decisions, or
• retaining the memory of decisions

In each case, this must be by reason of mental disorder or of inability to communicate because of physical disability (which inability cannot be overcome by human or mechanical means).

Principles

Any intervention in the affairs of an adult is governed by the AWIA 2000 and, in particular, the principles in section 1. These are:

• there shall be no intervention in the adult’s affairs unless the person responsible for authorising or effecting the intervention is satisfied that the intervention will benefit the adult and that the benefit cannot reasonably be achieved without the intervention
• where an intervention is to be made, the intervention must be the least restrictive option in relation to the freedom of the adult, consistent with the purpose of the intervention
• in determining if an intervention is to be made and if so, what intervention is to be made, account must be taken of:
  • the present and past wishes and feelings of the adult so far as these can be ascertained
  • the views of the adult’s nearest relative, named person in terms of the Mental Health (Care and Treatment) (Scotland) Act 2003 and the adult’s primary carer
  • the views of any guardian or attorney who has powers relating to the proposed intervention
  • any person whom the sheriff has directed should be consulted, and
  • the views of any other person appearing to have an interest in the adult’s affairs
• the person responsible for authorising or affecting the intervention shall, so far as it is reasonable and practicable to do so, encourage the adult to exercise whatever skills they have concerning their property, financial affairs or personal welfare and to develop new skills

Advance planning

Formal decision-making authority in advance of incapacity can be granted by the adult themselves, by making a continuing (property and financial) and/or a welfare power of attorney (see section 3.2 below).

The AWIA 2000 does not contain statutory provision for making advance decisions to refuse treatment, although it is generally understood that such decisions would be treated as binding by the Scottish courts if sufficiently clear and specific.

Court decision-making

Guardianship and intervention orders are dealt with in Part 6 of AWIA 2000. These may cover financial and property affairs, personal welfare matters or both.

There is no statutory definition of when each type of order is appropriate.

Intervention orders are generally granted for single acts, such as signing legal documents, or to sign forms agreeing where someone can live.

There is no reason why they should not be granted for a potential series of such acts, where those acts do not amount to ongoing guardianship.

Office of the Public Guardian (Scotland)

The Office of the Public Guardian of Scotland (OPG (S)) registers continuing and welfare powers of attorney, maintains the registers of all AWI orders, including powers of attorney, guardianships, and intervention orders made.

The OPG (S):

• grants authorisations under the access to funds scheme
• supervises financial guardians
• investigates circumstances made known to them where the property or finances of an incapable adult appear to be at risk

Scottish local authorities

Under section 10 AWIA 2000, a local authority has various general functions including:

• supervising welfare guardians
• receiving and investigating complaints in respect of the exercise, by guardians, interveners and attorneys, of functions relating to the personal welfare of an adult, and
• investigating any circumstances made known to them in which the personal welfare of an incapable adult seems to them to be at risk

The latter function has an interface with the Adult Support and Protection (Scotland) Act 2007.

Also in relation to the latter function, “local authority” includes a local authority for an area in which the adult is present, not only the local authority for the area where the adult is resident.

In respect of receiving and investigating complaints, “guardians” include proxy decision-makers appointed under the law of another country, whatever they are called, if that “guardianship” is recognised by the law of Scotland.

Those “attorneys” who might be investigated have an even broader international definition.

The sheriff can also order the direct supervision by a local authority of interveners with welfare powers and welfare attorneys.

Mental Welfare Commission for Scotland

The (Mental Welfare Commission) MWC has general functions under section 9 AWIA 2000.

Where the MWC is not satisfied as to an investigation made by a local authority into a complaint about proxy decision-makers with welfare powers, or where the local authority has failed to investigate a complaint, the MWC may receive and investigate the complaint itself.

The same international definitions apply as in relation to a local authority investigation, and the local authority, as well as the proxy decision-maker, shall afford the MWC all facilities necessary to allow it to investigate.

The MWC also carries out visits to randomly sampled adults who are subject to welfare guardianship.

The MWC also has further investigatory and other functions in respect of people with mental disorder, under Part 2 of the Mental Health (Care and Treatment) (Scotland) Act 2003.

Those functions include certain powers in respect of the property and financial affairs of people with mental disorder.

Authorising treatment

The AWIA 2000 does not contain an informal decision-making power for care and treatment equivalent to that in section 5 MCA 2005, except for treatment to preserve life, or prevent serious deterioration.

Medical provisions are contained in Part 5.

In particular, the adult’s medical practitioner, their dentist, optician or nurse, can issue a certificate which gives them authority to do what is reasonable in the circumstances, in relation to the medical treatment in question, to safeguard or promote the physical or mental health of the adult, during the period specified in the certificate.

The power to issue a certificate does not extend to compulsory treatment for mental health.

‘Access to Funds’ Scheme

Part 3 of the AWIA 2000 contains a scheme of ‘“Access to Funds’”, a form of financial management (simpler than a person being appointed by the court as a guardian), under which appointments are made by the public guardian.

Part 4 of the AWIA 2000 contains another scheme for the administration of finances of adult residents and patients by registered establishments, such as care homes and hospitals.

Deprivation of liberty

There is no equivalent of the Deprivation of Liberty Safeguards in Scotland.

The Scottish Government committed in 2023 to reforming aspects of the AWIA 2000, including in relation to deprivation of liberty.

Follow updates to mental health and capacity reform

England and Wales

Enduring power of attorney

An enduring power of attorney (EPA) relates to property and financial affairs only.

It continues to be valid despite the donor’s subsequent mental capacity, provided the attorney registers the EPA with the OPG (EW), when the attorney believes the donor has become or is becoming mentally incapable of managing their own property and financial affairs.

Since 1 October 2007, when the MCA 2005 came into force, it has no longer been possible to create an EPA.

Pre-existing EPAs continue to be valid. Schedule 4 MCA 2005 sets out the law applicable to EPAs.

Lasting power of attorney

Lasting powers of attorney (LPA) replaced EPAs in 2007 as the way for people to plan ahead.

An LPA gives an attorney authority to act on behalf of the donor, if the donor lacks mental capacity, to make decisions about their:

• property and financial affairs (PFA LPA), and/or
• health and welfare (HW LPA), including (if selected by the donor) giving or refusing consent to life-sustaining treatment.

A PFA LPA may also be used when the donor has mental capacity to make the relevant decisions, provided the LPA allows for this.

A HW LPA cannot be used when the donor has mental capacity to make the relevant decisions.

LPAs are governed by the MCA 2005 and the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007, as amended (the LPA Regulations).

The framework for making LPAs is being updated by the Powers of Attorney Act 2023, and practitioners should make sure they keep themselves up to date.

The LPA Regulations contain the version of the forms to be used and are commonly known as the ‘prescribed forms’.

To be valid, the LPA must be:

• made by a mentally capable donor who is aged 18 years or over
• in the prescribed form
• signed by an independent adult, such as a friend, solicitor, social worker or doctor (usually referred to as ‘the certificate provider’), confirming their opinion that at the time the donor executes the power they understand its purpose and scope and there is no fraud or undue pressure used to get the donor to sign
• signed in a particular order, namely signed first by the donor and witnesses, then the certificate provider and lastly, the attorney(s) and any replacement attorney(s) and their respective witnesses, and
• registered with the OPG (EW) before it can be used

The PFA attorney does not have authority to make gifts, except:

• on occasions where presents are customarily given within families or among friends or associates, or
• to a charity to whom the donor made or might have been expected to make donations

Any gift must be reasonable in all the circumstances and in relation to the size of the donor’s estate (section 12 MCA 2005).

Gifts outside of these parameters cannot be made by the attorney when the donor has mental capacity.

If the donor lacks capacity, the attorney must obtain the court’s authority.

The attorney

An attorney must be aged 18 or over.

A trust corporation may be appointed under a PFA LPA.

The attorney can be sole, or more than one attorney can be appointed.

An individual who is bankrupt or subject to a debt relief order may not be appointed as a PFA attorney but may be appointed as an HW attorney.

Replacement attorneys

The donor can appoint replacement attorneys to substitute an original attorney, where they are not able to continue to act, due to the occurrence of a ‘terminating event’ because the attorney has:

• died
• disclaimed their appointment
• lost mental capacity
• in respect of a PFA LPA, become bankrupt or subject to a debt relief order
• divorced or annulled their marriage or civil partnership to the donor

Evidence of a registered LPA

The LPA will have a perforated stamp at the bottom of the prescribed form, which states ‘validated-OPG’.

It is possible for the donor, a solicitor, stockbroker or notary to certify a copy of the original power.

Scotland

Continuing and welfare powers of attorney

A continuing and/or welfare power of attorney (POA) is a written document in which a person (the granter) nominates an attorney (or attorneys) to make decisions on their behalf in relation to property and financial affairs and/or personal welfare should they become unable to do so in the future because they lack mental capacity.

Continuing powers (property and financial) may be used when the granter has mental capacity, provided the POA provides for this.

Welfare powers cannot be used when the granter has mental capacity.

POAs are governed by the AWIA 2000. There is no prescribed form of POA, although there is a prescribed form of certificate to be annexed to the POA.

The prescribed form of certificate is set out in Schedule 1 to the Adults with Incapacity (Certificates in Relation to Powers of Attorney) (Scotland) Regulations 2008.

To be valid, the POA must:

• be made by a capable granter who is aged 16 or over
• be in writing
• be signed by the granter
• incorporate a statement which clearly expresses the granter’s intention that the powers granted be continuing powers, welfare powers or a combination of both
• where powers are exercisable only if the granter is determined to be incapable, incorporate a statement that the granter has considered how their incapacity should be determined
• incorporate a certificate signed by a practising solicitor, member of the Faculty of Advocates, or doctor (who is not the nominated attorney) confirming that they have interviewed the granter immediately prior to the granter signing the POA, that they are satisfied that the granter understands the POA’s nature and extent (either because of their own knowledge of the granter or because they have consulted another person who has knowledge of the granter and who must be named in the certificate) and that they have no reason to believe that the granter is acting under undue influence, or that any other factor vitiates the granting of the POA, and
• be registered with the OPG (S) before it can be used

The granter can choose to include powers in a continuing POA to allow their attorney to make gifts, including for tax planning purposes, in addition to gifts that had customarily been made to family member, friends or charities.

Gifts should be reasonable in all the circumstances and having regard to the size of the granter’s estate.

The attorney

An attorney must be aged 16 or over.

It is possible to appoint a sole attorney, more than one attorney, and substitute attorneys.

Individuals or organisation, such as a trust company, can be appointed as an attorney under a continuing POA.

Only individuals can be appointed as welfare attorneys.

An individual who is currently declared as bankrupt cannot be appointed as a continuing attorney but may be appointed as a welfare attorney.

Substitute attorneys

The granter can appoint substitute attorneys, who would begin acting if an original attorney was unable to act due to:

• resignation
• death
• loss of capacity
• in respect of a continuing POA, being declared bankrupt
• divorce or separation, where the attorney and granter were married or in a civil partnership

Registered POA

In Scotland a POA can be submitted in paper form or electronically for registration.

Most POAs in Scotland are now registered with the OPG (S) through its electronic registration system (EPOAR).

If the POA is submitted in paper form, by post, once it is registered, a certificate of registration will be produced and issued with a copy of the POA in the mail.

The public guardian’s crest will be on the certificate of registration and each page of the POA.

POAs registered by post do not require certification by the granter, or any other person.

If the POA is submitted electronically, then, once registered, a certificate of registration signed by the public guardian and a PDF copy of the POA will be available electronically for the person who submitted the POA to the OPG (S) for registration to download.

The public guardian’s crest will be on the certificate of registration and each page of the POA.

Each page of the POA is numbered and contains the public guardian’s reference and unique certificate number. The certificate can be verified on the OPG (S) website.

An electronically registered POA must be certified by one of the people listed below, before it can be used. It is clear from the face of the document that it requires to be certified.

The document can be certified by:

• the granter
• a solicitor
• a stockbroker
• an authorised person for the purposes of the Legal Services Act 2007

The OPG (S) has published a typical example of a POA.

Using an English and Welsh EPA or LPA in Scotland

If the EPA or LPA is valid according to English and Welsh law and has been registered with the OPG (EW), it should be considered to be automatically valid in Scotland without any further action being required.

In Application by C re E, Airdrie Sheriff Court, 2 April 2013 (unreported), the sheriff held that a properly registered English EPA had automatic effect in Scotland and the attorney was entitled to rely on the powers conferred by it in Scotland.

However, organisations (generally financial organisations) may require some form of Scottish endorsement of the POA.

There is no provision in the AWIA 2000 for having a non-Scottish POA formally endorsed, but the OPG (S) has devised a certificate, which can be printed and presented with the non-Scottish POA.

If and when the Hague Convention on the International Protection of Adults is ratified in respect of England and Wales, it will be possible for a central authority in England and Wales (as yet to be identified) to issue a certificate under article 38, which will stand as proof of the contents of the power to which it relates (by para. 11(3) of Schedule 3 AWIA 2000).

How the attorney exercises their powers under an English EPA or LPA in Scotland is governed by the AWIA 2000.

If they are not exercising their powers to safeguard or promote the welfare or property of the donor, then an application can be made to the Sheriff Court for the power to be disapplied or modified (para. 4(5) of Schedule 3 AWIA 2000).

Using a Scottish POA in England and Wales

If the Scottish POA is valid according to Scots law (and registered with the OPG (S)), it should be considered to be equally effective in England without any further steps being taken.

In practice, this depends upon whether it will be accepted by the relevant body or organisation with which the attorney is dealing.

It appears in practice that health and social care professionals are often ready to accept the authority of an attorney acting under a welfare POA.

By contrast, financial organisations might not accept the authority of a continuing POA without the attorney first obtaining confirmation from the Court of Protection that they can use the power in England and Wales.

If difficulties are experienced in using a Scottish POA in England and Wales:

• the attorney can draw the attention of the organisation to section 4 Evidence and Powers of Attorney Act 1940, which provides that an extract of a Scottish POA from the Books of Council and Session is evidence of the content of the document throughout the UK

• the attorney can make an application to the Court of Protection under Part 23 of the Court of Protection Rules 2017 for a declaration under section 15(1)(c) MCA 2005 that the attorney is acting lawfully when exercising authority under the Scottish POA, following the procedure contained in Practice Direction 23A. If the difficulties are attributable to a specific body or organisation, the attorney should consider seeking their costs of making the application from them. See also mental capacity: international aspects, Re Various applications concerning foreign representative powers [2019] EWCOP 52, and MCA 2005, Schedule 3, paras 13 and 14

If and when the Hague Convention on the International Protection of Adults is ratified in respect of England and Wales, para. 30 of Schedule 3 MCA 2005 will come into force.

At that point, a certificate issued by a central authority (which, in Scotland, is the Scottish Government Central Authority & International Law Team) under article 38 of the convention will stand as proof of the contents of the power to which it relates.

How the attorney exercises their powers under a Scottish POA in England and Wales is governed by the MCA 2005.

If they are not exercising their powers in the best interests of the donor, then the Court of Protection can order that the power be disapplied or modified (para. 14 of Schedule 3, MCA 2005).

England and Wales

The Court of Protection has jurisdiction (by para. 7(1) of Schedule 3 MCA 2005) over the property, or the person of an adult if they:

• are habitually resident in England and Wales
• have property in England and Wales
• are present in England and Wales, or have property there, if the matter is urgent, or
• are present in England and Wales and if a temporary protective measure (such as a court order relating to their welfare) limited to England and Wales is proposed

In any case involving Scotland, the Court of Protection will need to be satisfied that the person satisfies one of the tests set out above before it can have jurisdiction over their person or property.

Examples of cases involving Scotland include:

• JO v GO [2013] EWHC 3932 (COP) – a disputed move by family members of a parent to Scotland, who retained property in England
• An English Local Authority v SW and another [2014] EWCOP 43 – a placement by a Scottish local authority of a person with impaired decision-making capacity in England

If the Court of Protection has jurisdiction over the person or property of the person, it can make decisions and declarations in relation to those matters exercising its ‘full original jurisdiction’ (see Re MN [2010] EWHC 1926 (Fam)).

The Court of Protection also has jurisdiction under Schedule 3 MCA 2005 to recognise and declare enforceable protective measures taken in foreign jurisdictions.

This includes, for these purposes, the appointment of a guardian in Scotland or an intervention order made by a Sheriff Court placing an adult in a facility in England and Wales.

Note that the Court of Protection looks with particular concern at guardianship orders made in Scotland purporting to grant authority to the guardian to deprive the adult of their liberty. See: 

• Aberdeenshire Council v SF & Ors (No. 2) [2024] EWCOP 10
• Argyll and Bute Council v RF (Sch 3 Recognition and Enforcement) [2025] EWCOP 12 (T3)

Scotland

The Scottish judicial authorities (by para. 1(1) of Schedule 3 AWIA 2000) have jurisdiction over the property, or the person of an adult if:

• the adult is habitually resident in Scotland
• property which is the subject of the application or proceedings or in respect of which functions are carried out under this Act is in Scotland
• the adult, although not habitually resident in Scotland, is there or property belonging to the adult is there and, in either case, it is a matter of urgency that the application or the proceedings are dealt with, or
• the adult is present in Scotland and the intervention sought in the application or proceedings is of a temporary nature and its effect limited to Scotland

The Scottish courts also have jurisdiction under Schedule 3 AWIA 2000 to recognise and declare enforceable protective measures taken in foreign jurisdictions.

This includes, for these purposes, the appointment of a deputy in England and Wales or an order made by the Court of Protection placing a person in a facility in Scotland.

In Application by Darlington Borough Council in respect of the Adult: AB [2018] SC GLA 4, it was held that there is no requirement to notify the Scottish central authority before a placement in Scotland is contemplated by English statutory authorities.

Specific cross-border issues involving the courts

In practice, the courts (in both jurisdictions) are not always comfortable with accepting jurisdiction to recognise and declare enforceable protective measures that contemplate the placement of a person within their jurisdiction before the person arrives within the jurisdiction.

This can cause problems in terms of appropriate care planning and specialist advice should be sought.

A second specific issue is as to the transfer of jurisdiction.

The Court of Protection in JO v GO [2013] EWHC 3932 (COP) accepted the doctrine of forum non conveniens applies in the contexts of adults with impaired decision-making, declining on the facts of the case to exercise jurisdiction over the property in England of a person now habitually resident in Scotland.

However, unlike the position in respect of children, there are no well-established mechanisms for either judicial liaison or transfer of jurisdiction in cases involving those within the scope of the MCA 2005 or the AWIA 2000.

In any case involving similar issues to JO v GO (which could also include welfare matters), consideration will need to be given as to how to invoke the jurisdiction of the ‘new’ court.

England and Wales

Where a person aged 16 or over lacks capacity to manage their property and affairs, the MCA 2005 provides only limited authority to another person to make use of their money in connection with their care and treatment (see sections 7 and 8 MCA 2005).

Unless the person is aged 18 over and has granted a PFA LPA or EPA, the Court of Protection will need to appoint a property and financial affairs deputy, where the person has more than welfare benefits to be managed.

As set out in paragraph 4.1 above, the Court of Protection has jurisdiction to do so in relation to the person’s property and assets in England and Wales, whether or not they are habitually resident in England and Wales.

Scotland

If an adult (a person aged 16 or over) is not able to grant a power of attorney, then a relative or interested person can apply to the local Sheriff Court for an order to become the adult’s guardian for financial decisions.

If guardianship seems to be necessary, but there is no person willing, or able, to take on the role, the chief social work officer of the local authority cannot be appointed as a financial guardian, but the local authority must make an application for financial guardianship.

In those circumstances, an independent solicitor is usually nominated as guardian.

As set out in paragraph 4.2 above, the Sheriff Court can appoint a guardian for the adult in respect of their property and assets whether or not they are habitually resident in Scotland.

There are also powers in Scotland, not available in England, under Parts 3 and 4 AWIA 2000, in relation to accessing and administering monies belonging to the adult (see 2.2 above).

England and Wales

In England and Wales, nearly all acts of care and treatment are undertaken by people relying on the statutory protection afforded by section 5 MCA 2005, if it is reasonably believed that the person lacks capacity to consent to the care and treatment being undertaken and it is believed to be in their best interests.

The statutory protection afforded by section 5 can extend to moving the assisted person out of the jurisdiction without further formalities (and this can lead to a change in their habitual residence), but not where steps have been taken in bad faith or are not in the best interests of the person (see JO v GO [2013] EWHC 3932 (COP)).

The consequence of section 5 MCA 2005 is that there is rarely a practical need for a welfare deputy to be appointed.

They will generally be appointed as a safeguarding measure, or where the person who lacks mental capacity has complex health and/or social care needs and/or communication difficulties and a close family member acts as the lynchpin for keeping their health and care support stable and consistent.

As noted at 6.2 below, guardianship is used more often in Scotland.

A Scottish welfare guardianship order can be used in England and Wales, although health and social care providers may not be familiar with it and may require that an application be made to the Court of Protection for confirmation that it is recognised and enforced as a ‘foreign protective measure’ under Schedule 3 MCA 2005.

If the terms of the guardianship order purport to relate to deprivation of liberty, the court will want to see that any detention is lawful in accordance with article 5(1)(e) of the European Convention on Human Rights and there are regular reviews (at least annual).

The Court of Protection cannot recognise and declare enforceable a guardianship order which gives rise to an unlawful deprivation of the person’s liberty: see again Aberdeenshire Council v SF & Ors (No. 2) [2024] EWCOP 10 and Argyll and Bute Council v RF (Sch 3 Recognition and Enforcement) [2025] EWCOP 12 (T3).

The Court of Protection can make standalone orders, including residency and contact orders.

The Court of Protection can authorise a deprivation of liberty of the person, although in any setting to which the Deprivation of Liberty Safeguards apply this administrative regime will be the first port of call (see section 2.1 above).

The Court of Protection can authorise the deprivation of liberty of a person who is habitually resident in Scotland but present in England and Wales.

Scotland

In Scotland, as there is no equivalent of section 5 MCA 2005, there is much greater use of formal decision-making powers.

If an adult is not able to grant a power of attorney, then a relative or interested person can apply to the local Sheriff Court for an order to become the adult’s guardian with power to make welfare decisions.

If guardianship seem to be necessary but there is no person willing, or able, to take on the role, the local authority for the area in which the adult is resident must make such an application, for appointment of its chief social work officer.

The rules regarding this appointment are set out in section 57 AWIA 2000.

An English welfare deputyship order can be used in Scotland, although health and social care providers may not be familiar with it, and may require that an application be made to court for confirmation that it is recognised and enforced as a ’foreign protective measure’ under Schedule 3 AWIA 2000.

The Sheriff Court could authorise, whether by empowering a guardian, or granting an intervention order, the deprivation of liberty of a person habitually resident in England and Wales but present in Scotland.

As there is no administrative framework equivalent to the Deprivation of Liberty Safeguards, it is more likely that the Sheriff Court would be required to consider this question than would be the Court of Protection in the reverse scenario.

Welfare

Change of ordinary residence

If a client is planning to move from England and Wales to Scotland (or vice versa), then the local authority social work department should provide advice and assistance to anyone in their area.

This does not necessarily mean that social services in the new area will be liable to pay for it or that the client will be assessed under the rules applying to that area.

In general terms, the rules applying to who pays for care and which jurisdiction applies depends on where the person is ordinarily resident.

It is very important to be aware that the rules for determining ordinary residence of those with impaired decision-making differ between England and Wales and Scotland.

In outline:

• it is possible for a person with impaired decision-making capacity to change their ordinary residence under the law in England and Wales without the decision as to their new residence being taken by someone with formal authority (see JO v GO [2013] EWHC 3932 (COP))

• a change of ordinary residence in relation to an incapable adult in Scotland can only take place where the decision in relation to residence is taken by someone with legal authority; for example, an attorney, a guardian, or a sheriff

Decision-making authority

Given the different approaches to decision-making authority in relation to welfare in the two jurisdictions, there are considerations that apply to a move between jurisdictions.

Where the client currently has the material decision-making capacity, then in advance of incapacity, it is particularly important to consider whether they should make a HW LPA under the MCA 2005 or grant a welfare POA under the AWIA 2000.

In either case, it would be prudent to include a choice of law clause.

The OPG (EW) has drafted the following wording where the donor wishes to choose the law of England and Wales:

“This LPA is made in accordance with and governed by the law of England and Wales, which I specify shall be the law applicable to the existence, extent, modification and extinction of this power.”

There is no equivalent from the OPG (S), but it is suggested that the equivalent wording, modified as necessary, would be appropriate.

Explore our practice note on lasting powers of attorney. 

Where the client does not have capacity to make a POA, consideration will need to be given as to whether:

• it is necessary to seek a welfare deputyship order in England and Wales, given the operation of section 5 MCA 2005, or
• to seek a guardianship order in Scotland (which is likely only to be possible when the person is physically present in Scotland – see 5 above).

Property and financial affairs

Moving from Scotland to England and Wales

Given the practical difficulties noted at paragraph 3.4 above in relation to the acceptance by English financial institutions of Scottish continuing POAs, it is advisable for a client with capacity to grant an English PFA LPA if they hold property or intend to acquire property in England and Wales, rather than rely on a Scottish continuing POA.

If the person had not granted an English PFA LPA prior to the loss of the relevant decision-making capacity, then if the person has:

• a Scottish financial guardianship order in place, consideration should be given to relying upon that order in England and Wales. The order should in principle be recognised by operation of law (para. 19(1), Schedule 3 MCA 2005). If the relevant financial organisation is not prepared to accept the order, then an application can be made for recognition and enforcement of the guardianship order as a ‘foreign protective measure’ under Schedule 3. The procedure for this is governed by Part 23 of the Court of Protection Rules 2017, supported by Practice Direction 23A. This is likely to be most appropriate when the assets to be managed are limited, for example an English pension or a savings account with a small balance.

• larger assets which need to be managed in England and Wales, such as real property and financial accounts, then it may be appropriate to apply to the Court of Protection for the appointment of a deputy.

Moving from England and Wales to Scotland

If the person has sufficient capacity to do so, consideration should be given as to whether it would be most effective to make a continuing POA to deal with any Scottish assets which they have or intend to have.

If the person has a deputy appointed by the Court of Protection in England, it should be recognised in Scotland, but it may be necessary to make an application to the Sheriff Court for confirmation that it is recognised and enforced as a ‘foreign protective measure’ under Schedule 3 AWIA 2000.

If the person lacks capacity to make a continuing POA and no English deputyship order is in place, then an intervention order or guardianship order may be needed (see 4.2 above).

Updating wills

Alongside considering the management of the person’s finances during their lifetime, it is crucial to also consider any testamentary dispositions that they may have made.

The law in relation to wills and inheritance is different depending on which side of the border you live on and where your real property exists.

A detailed exploration of this is outside of the scope of this note, but it is something that must be kept in mind.

Legislation

England and Wales

• Mental Capacity Act 2005
• Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007
• Mental Capacity Act Code of Practice (out of date) – explore an unofficial update setting out paragraphs which are wrong in light of subsequent case law

Scotland

• Adults with Incapacity (Scotland) Act 2000
• Adults with Incapacity (Certificates in Relation to Powers of Attorney) (Scotland) Regulations 2008
• Code of Practice for anyone authorised under an intervention or guardianship order
• Code of Practice for local authorities exercising functions under the AWIA 2000
• Code of Practice for medical practitioners
• Code of Practice for attorneys of continuing of welfare powers
• Court of Protection Rules 2017
• Practice Direction 23A

Practice notes and guidance

England and Wales

• Lasting Powers of Attorney
• Mental capacity: international aspects

Scotland

• Continuing and welfare powers of attorney

Websites

OPG (EW) guidance on making a lasting power of attorney

OPG (S) Guide on making a continuing and welfare power of attorney:

Mental Welfare Commission for Scotland publishes information on the AWIA 2000 and good practice guidance:

Scottish Adult Incapacity Law Guide by Adrian Ward: Parts 1 and 2

STEP guide to mental capacity in international jurisdictions

Books

• Court of Protection Practice (Lexis Nexis), appendix 1
• Heywood & Massey Court of Protection Practice (Sweet & Maxwell), chapter 14
• Adrian Ward, Adult Incapacity (W Green, 2003)
• Richard Frimston et al, The International Protection of Adults (OUP, 2015)