Q. I intend to register a deed executed by an attorney acting under a Power of Attorney. Will the Keeper require to see the Power of Attorney and should the powers conferred on the attorney be specifically narrated in the Power of Attorney?

A. Yes. Where a deed pertinent to an application for registration is executed under power of attorney the Keeper will require to examine the Power of Attorney or a certified copy. The view of the authorities (for example Halliday, Conveyancing Law and Practice, 2nd Edition, Volume 1, Chapter 13) is that Powers of Attorney are construed strictly and that all powers required should be specifically expressed since nothing more will be implied. Halliday notes in particular that special powers must be conferred on an attorney to enable him to sell or dispose or otherwise transact with heritable property (e.g. to execute a standard security or a consent or renunciation under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 or a renunciation of a Liferent interest). A Power of Attorney submitted in support of an application for registration must, therefore, contain specific authorisation for the transaction to which the deed executed under the power of attorney relates. If the Power of Attorney is lacking in any respect, the Keeper may not accept it as authorisation for the attorney to act. If this is the case, the deed in question should be executed by the principal or a new Power of Attorney drawn up and executed. If the principal is now unable to act due to mental incapacity, a solution in terms of the Adults with Incapacity (Scotland) Act 2000 should be considered.

Pre-Registration Enquiries Section is happy to advise in cases of doubt.