LPAsCross Border Concerns and Lasting Powers of Attorney

As a follow on from our last article on the implications of foreign property in wills, this week we will look at cross border implications of Lasting Powers of Attorney (LPAs). The enforcement of LPAs abroad and similar foreign documents here is a complex area but it is an issue that is becoming more common. Where there is an international element to a donor’s arrangement, it is vital that their situation is clarified as soon as possible. If it is left until the donor has lost capacity, they could be left with an LPA that is not valid abroad or a foreign document that is not valid here.

This article will only consider the situation in England and Wales and does not apply to other parts of the UK.

Relevant Law

The rules of whether a foreign power of attorney can be recognised in England and Wales are contained in Paragraph 19, Schedule 3 of the Mental Capacity Act 2005 (MCA).

The UK is amongst several countries that have signed the Hague Convention on International Protection of Adults (the Convention). The Convention deals with how powers of attorney and other protective measures will be recognised and enforced in the ratifying countries. Whilst the UK signed the Convention, it is only ratified in Scotland and therefore the Convention itself does not have effect in the rest of the UK. The majority of the Conventions terms are however written into Schedule 3 MCA with some differences.

Will an LPA be accepted abroad?

If England and Wales had ratified the Convention, there would be a legal right for an LPA to be accepted in the other ratified counties. As England and Wales have not, the question of whether an LPA will be accepted abroad is entirely down to that country’s own laws and is therefore impossible for us to confirm. Donors wishing to rely on an LPA abroad should therefore seek advice in that country as soon as possible as a foreign power of attorney or similar instrument may be required.

Will a foreign Power of Attorney be accepted in England?

A foreign power of attorney or similar document will be recognised in England and Wales under Schedule 3 MCA if it was valid under the law of the country in which the donor is habitually resident.

For example, if a French national living in France with a valid French document similar to a power of attorney has property in England their French power of attorney should be recognised in England.

A valid foreign power of attorney may however be disregarded in certain circumstances, for example if it would be manifestly contrary to public policy to recognise it.

Even where the foreign document is valid, there may be difficulties with banks or other organisations accepting it. They may require that the Court of Protection give authority before accepting the document, in which case a declaration under S15(1)(c) MCA will need to be sought on whether the attorneys are acting lawfully when exercising the authority of the foreign document in England and Wales.

In a worst case scenario where the foreign document cannot be accepted, an application for a deputyship would be required.

It may therefore be simpler and easier for the foreign national to make LPAs to deal with their affairs in England and Wales if it’s possible for them to do so.

 

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