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A Lasting Power of Attorney (LPA) is a legal document that lets you choose a person or people (called "attorneys") to make decisions for you if you become unable to do so for yourself. You must set this up while you still have the mental capacity to make your own decisions.
In England and Wales, there are two types of LPA:
- Property and Financial Affairs LPA (LPAPFA): this lets your attorney manage your money, property and financial matters. You can decide if they act only when you lose capacity, or sooner.
Example: if you are overseas and need someone to sell your house in England, your attorney can do this for you.
- Health and Welfare LPA (LPAHW): this lets your attorney make decisions about your health and personal welfare, but only if you lose capacity.
Example: if you are in hospital and cannot communicate, your attorney can decide about your medical treatment and care.
Who should consider making an LPA?
Anyone over 18 should think about making LPAs. This gives you control over who will make decisions for you if you ever lose mental capacity. If you don't have LPAs and lose capacity, someone will need to apply to the Court of Protection to act for you. This process is slow, expensive, and you won't have a say in who is chosen. The Court rarely appoints someone to make health and welfare decisions; instead, it prefers to rely on the multidisciplinary decision making specified in the relevant Act of Parliament.
It's a common myth that your spouse or partner can automatically make decisions for you as "next of kin". In reality, they need to be legally appointed as your attorney. Without an LPA, the Court decides who acts for you, which may not be the person you would have chosen. This can cause problems, especially with joint property or bank accounts if one owner loses capacity.
Can international clients make an English law LPA?
Yes, you can and should consider making an LPAPFA if you have assets in England or Wales, even if you do not live here full-time. For example, if you live in France but own a flat in London, making an LPAPFA lets your chosen attorney manage the flat while you are in France under your direction and to continue to do so if you lose capacity.
You may also want to make an LPAHW if you do live here for part of the year.
You may already have made a Power of Attorney in another country. However, it may not be recognised in England and Wales. Although there are international agreements to help, in practice, organisations in England and Wales may reject foreign documents if they do not look like the standard LPA that they are used to seeing. Attorneys can ask the Court of Protection to confirm their authority, and the Court of Protection may recognise foreign LPAs or equivalent if it is valid under the foreign law in question and meets the requirements of a "protective measure" in the originating country (which tends to require a court or registration process). However, applying to the Court of Protection will add material time and complexity in a situation when neither will be desirable.
Strictly, if a donor of an LPA is habitually resident elsewhere when it was made, it is generally that law which will apply to determine the nature and extent of the LPA. An exception is if the only connecting factor is that you have property in England and Wales, then it is English law which applies for these purposes.
The law which applies to the manner of the exercise of the power in question is the law of the country where it is exercised, however.
As a result, international clients habitually resident elsewhere but with property in the UK should ensure that they have an English law LPAPFA which will apply to all property situated here. If they are spending material time here it is also sensible to have an LPAHW, too.
Can my LPA be used in another country?
Again although there are international agreements for mutual recognition of LPAs and equivalents, the position depends on the country and the organisation you're dealing with. As a minimum, you'll likely need:
- A translation of your LPA into the local language;
- A certified copy from a notary public;
- An apostille (official stamp) from the Foreign and Commonwealth Office.
Under the Mental Capacity Act where a donor of an LPA is habitually resident in England and Wales when it was made, it is generally English law which applies to the existence and extent of the power, although the donor can choose the law of another connected country by specifying that in writing. A connected country for these purposes is one of which the donor is a national, habitual resident or where they have property.
Certain mandatory provisions of English law will prevail regardless of any foreign law that would otherwise apply, however, e.g. regarding gifts, best interests, and registration requirements must be observed when dealing with English assets.
As countries do not consistently recognise each other's legal documents, it is generally advisable to prepare a local-law version that is more likely to be accepted, clearly understood, and compliant with any mandatory local requirements.
Conclusion
As the above should illustrate, LPAs are notorious for being awkward in a cross-border context.
In practice it is usually best to make an LPA or equivalent under the law of each country where you may need it. Even then care must be taken over drafting to ensure that the scope of each is clear. Careful advice and forward planning is essential.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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