Why do I need an English Lasting Power of Attorney if I live overseas?

A power of attorney is a document that allows one party, the donor, to appoint another party, the attorney, to act on their behalf.

In England and Wales, a general power of attorney gives the attorney powers to deal with the financial affairs of the donor and can be as wide or restrictive in its remit as the donor wishes. A general power of attorney can only continue if you have mental capacity.

A lasting power of attorney (‘LPA’) is an English and Welsh legal document that allows the appointment of one or more people to make decisions for you if you lack the mental capacity to do this for yourself, for example if you develop dementia or are in an accident and are unable to make decisions for yourself because you are unconscious. There are similar documents in other jurisdictions.

If you have not put an LPA in place and lose capacity to deal with your own affairs in England and Wales, it may become necessary for your family or friends to involve the Court of Protection. The Court of Protection can appoint a ‘deputy’ to make decisions on your behalf. The role of a deputy is similar to that of an attorney but the reporting requirements are more rigorous and the time and cost of having a deputy appointed are far greater than appointing an attorney yourself, whilst you have mental capacity.

Yes, there are two types of LPA in England and Wales:

1. The property and financial affairs LPA

Under this type of LPA your attorneys are given permission to deal with your property and investments, operating bank accounts and paying bills etc. You can set this type of LPA up in such a way that it can be used even whilst you have mental capacity. If you live overseas with assets in England or Wales, and your attorneys are based in the UK this can have practical advantages.

2. The health and welfare LPA

This type of LPA gives your attorneys authority to make decisions in relation to where you live, medical treatment and diet. You can give your attorneys the power to decide to withdraw life-sustaining treatment if you wish. Your attorneys can only act if you do not have the mental capacity to make decisions yourself.

The Hague Convention and LPAs

The Hague Convention XXXV on the International Protection of Adults of 13 January 2000 (‘the Hague Convention’) addresses issues of jurisdiction, acceptance and enforcement with regard to powers of attorney.

The Hague Convention makes it possible to obtain a certificate which can be used to allow an appointed attorney(s) to act in another country that has signed and ratified the Hague Convention.

However, although the UK has signed the Hague Convention, it is currently only ratified in Scotland, meaning that it is not possible to have a certificate issued in England or Wales.

Despite England and Wales not having ratified the Hague Convention, English law does recognise a translated and legalised foreign equivalent to a LPA, as long as it passes a two-part test.

            Part One

The foreign equivalent to a LPA must be valid in the jurisdiction in which it is made.

            Part Two

The donor of the foreign equivalent to a LPA must be habitually resident in the country in which    the foreign equivalent to a LPA was made.

It is important to note that it can be difficult to use an overseas LPA in England and Wales as it can be difficult to convince UK bodies, such as a bank, to accept such a document with which they are not familiar.

Example

Jane and John are a British couple who moved to France. They had a property in England and one in France. Both were in good health but John liked to plan ahead so both he and Jane contacted us for advice on how to put in place effective powers of attorneys in both jurisdictions. We suggested they put in place both the property and financial affairs LPA and the health and welfare LPA in England, together with French equivalents. We prepared John and Jane’s English LPAs and were able to put them in touch with a notaire who assisted them in France.

Many years later, John sadly developed dementia. It was necessary for Jane to sell both the French and English properties to allow her to buy them a new home back in England that was more suitable for their current situation. Due to John’s forward planning, he had effective powers of attorney in both England and France allowing Jane to make all the necessary decisions for him. As John had made an English LPA, it allowed Jane to easily sell the English house for them when it became necessary, without having to go through the additional step of having a foreign LPA recognised in England, or going through the Court of Protection to be named as John’s deputy.

This example highlights that even if you are in good health, if you live overseas it is good practice to plan ahead and put in place an English LPA and the foreign equivalent in the relevant jurisdiction(s) to avoid potential legal and practical challenges should you no longer be able to make decisions for yourself.