In England when an adult lacks capacity to make decisions for themselves, someone on their behalf can make an application to the Court of Protection in England, for a decision to be made about the incapable person’s welfare and/or finances.  A Deputy may then to be appointed by the Court.  The Deputy acts as the incapable adult’s decision maker. 

In certain circumstances, the Deputy may be granted powers to relocate the Adult to Scotland if they believe it is in the Adult’s best interests.

The English Order may instruct the Deputy or interested party to have the Court of Protection Order recognised in Scotland with the relevant Scottish Court.  Once granted, and before the move, the Deputy should then instruct a Scottish solicitor to take forward the application to the Scottish Court which has jurisdiction.  This will often happen when a local authority or another appointed Deputy is taking steps to move the incapable adult to care accommodation in Scotland.  The recognition of the Order in Scotland will stand as a lawful authorisation of the incapacitated Adult’s deprivation of liberty in care accommodation.  An application is made to the Court with various supporting documents (including copies of the English Order) and lodged by the Scottish solicitor.  The Court then allocate a Hearing date.  Any interested party will receive intimation of the Court Hearing date.  The Scottish solicitor will attend the hearing to ask the Sheriff to grant the request to recognise the English Order in Scotland.  The application will also usually ask the Court to grant authority to register the English Order in the Office of the Public Guardian’s register of international measures.

Where an incapable adult has granted a Power of Attorney (POA) outwith Scotland but the incapable Adult now resides in Scotland or has assets in Scotland, the non-Scottish POA can be used in Scotland if an organisation (for example a bank) accepts its authority.  The organisation may seek some form of Scottish endorsement of the POA.  The Office Public Guardian in Scotland have a Certificate which recognises foreign POAs in Scotland.  The Certificate can be presented along with the POA to organisations, which should assist in having the non-Scottish POA accepted in Scotland. 

Our dedicated Adults with Incapacity Team are on hand to assist in the recognition of English Orders as well provide services for those living in Scotland for guardianship, intervention orders and Power of Attorney enquiries.