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English Power of Attorney to sell house in Scotland

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  • English Power of Attorney to sell house in Scotland

    Hello,

    I'm in a tricky position and not really sure where to turn.

    About 18 months ago my Mother moved from her home in Scotland to live with us in York. She moved in with us as she was having falls and was starting to become confused and forgetful - she previously lived on her own.

    Around a year ago she had a fall, was taken in to hospital where she had another fall on the ward suffering bleeding to brain. She has recovered to a degree but now has no short term memory whatsoever and has lost the movement of her arms and legs. She is now resident in a care home.

    Mum has no savings, no assets other than the house she lived in which is fairly dilapidated and has a very low income. The house has been valued at ~60K.

    Care home fees are being paid for by the Council, who now have a charge on her house in Scotland which they will recover these fees from when the house is sold.

    I approached my Mums solicitor in Scotland for advice, who took several months to evaluate things, then told us to pursue a Power of Attorney in the English courts and sent us a fairly sizeable bill.

    I then engaged a solicitor in England who thought this was more a Scottish issue and passed us to a partner firm of theirs in Scotland. They tried to progress things through a Welfare & Financial Guardianship in the Scottish Courts (for which Legal Aid is available), but has now advised, following a medical report, that due to Mum having a level of understanding when she moved to England that the Welfare element would no longer be in the jurisdiction of the Scottish Courts. Without the Welfare element Legal Aid would not be available and there would a cost of 5K+ to seek guardianship - which neither I nor my mother has.

    There are no other close family members who can contribute.

    I sought guidance from the Registers of Scotland around asking whether an English PoA would have effect in Scotland to allow the sale of the house - and I must confess I don't really understand their response. I've copied it below.

    The Keeper takes a largely administrative role in relation to land registration in Scotland, this role is based on statutory authority and that authority does not allow her to provide legal advice to either solicitors or members of the public.
    In general terms I can confirm that the Keeper is unlikely to extend her indemnity to any title granted in a process not approved by the Scottish Courts or the Public Guardians Office here in Scotland, unless she can be shown clear authority for action by the English courts: such authority is likely to include express consideration by the English court of the jurisdiction of any Deputy appointed in their disposal of a particular case.

    I strongly suggest you obtain the services of a suitably qualified solicitor in this matter or in the first instance you may want to approach the Public Guardians Office here in Scotland for guidance.
    So things have ground to a halt and I'm not sure what to do. The condition of the house will be getting worse and I do worry every time I hear of storms and strong winds.

    I think the options are:

    1) Seek Financial Guardianship in Scotland to sell the house. The process will take 6 months + and cost 5K. (I don't have 5K so can't see how this can be an option).
    2) Seek PoA in England. I think I can do this without a solicitor to keep the costs down, but don't really understand if this would be sufficient to allow the sale of the house.
    3) Do nothing. But if I do this, when the council decide that the equity on my Mums house has been used up they will either move Mum to a cheaper care home or seek that I make the contribution to keep her where she is.

    The main thing is that Mum is very content and settled in the care home she is in. It is nearby, allowing me to visit every couple of days. I want to make sure Mum can continue to stay in this home for as long as possible.

    I've been trying to deal with this on my own for almost a year now and feel I'm really no further forwards - and it's so stressful: It's my Mum - I need to do EVERYTHING I can to make sure she's OK. I think I am, generally, very capable at dealing with things, but this is getting me really down and I just don't know where to turn. Any advice or assistance would be very gratefully received.



    Thanks,

    WD.
    Tags: None

  • #2
    Re: English Power of Attorney to sell house in Scotland

    I see this thread has had several hundred views (about 800 as at today) so thought others might find it useful for me to give an update.

    Since starting this process almost 2 years ago I'm nearing the finishing line. At the end of January this year a Scottish Court issued an Intervention Order which gives me the authority to sell the house on my Mothers' behalf.

    After posting on this thread, I engaged an Enlish solicitor to begin the process of arranging Deputyship. She contacted the Registers of Scotland to confirm this would provide the necessary powers, and they were much more clear and direct in their response to her; the Deputyship would not be sufficient.

    Good afternoon,

    Thank you for your letter dated 17th Jul. 2015 re the above subjects.

    Scotland recently introduced a new system of Land Registration governed by the Land Registration etc. (Scotland) Act 2012.

    One of the requirements of the Act is that any deed submitted for registration must be "a registerable deed" - its registration must be authorised by an enactment in terms of section 49 of the said Act. An Order made by the Court of Protection appointing a Deputy is not a registerable deed as there is no enactment authorising registration. The Order cannot be registered in the Land Register in a manner similar to that in which a Scottish Intervention or Guardianship Order is registered.

    The Keeper of the Registers of Scotland and her staff cannot provide legal advice in connection with the sale and conveyancing process which takes place prior to an application for registration, but the mention of a firm of Scottish solicitors is noted - perhaps it may be helpful to return to them as they will be in a position to advise you in that regard and also with the involvement of the Office of the Public Guardian and the Register of International Measures.

    I hope you find this information useful.

    Kind regards

    XXXXXX XXXXXX|Customer Services|(0800 1699391|:XXXXXX.XXXXXX@ros.gov.uk |: www.ros.gov.uk
    So in August last year I engaged a Scottish solicitor to arrange an Intervention Order. This seemed my only route to being able to sell the house. The rough costs for this are around 5,000 but I negotiated with the solicitor that they would be paid their fee upon sale of the house - if they hadn't agreed to this I'd still be in limbo. (I also asked them to carry out the conveyencing).

    It took from August until December to compile the appropriate medical and family reports, with the application for the Intervention Order being submitted just before Christmas.

    One condition of the Intervention Order was that a Bond of Caution be sought, which, as I understand it, in effect insures the proceeds of the sale of the house against my running off with them!! Given my credit car-crash from 4 years ago+, and the Credit Search that the Bond of Caution requires I was worried that this wouldn't be granted, but it was - and without issue or query. And I can see the credit search the bond issuer made on my credit file - so they do search.

    So, now to sell the house....how hard can that be??


    (Actually quite hard it would seem. Mum bought the house in 1969, when something called an "ex facie absolute" meant that Mum signed the ownership of the house over to the Building Society, to be returned to her once the mortgage had been repayed. Now, on the face of it, Mum doesn't actually own the house so the next hurdle I need to jump is how to have the ownership passed back to my Mum so that house can be sold, but without clearing the outstanding mortgage - because the funds to allow this will only be available after the house sells. Chickens and eggs.) But this is another story for another thread!

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