Home & Away - Having a Power of Attorney Recognised Abroad
Posted on 30th May 2022 at 13:09
A Lasting Power of Attorney is a legal document that lets you (the ‘donor’) appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf.
This gives you more control over what happens to you if you have an accident or an illness and cannot make your own decisions (you ‘lack mental capacity’).
There are two types of Lasting Power of Attorney:
• Property & Finance;
• Health & Welfare.
These documents can be used for things such as, managing a bank or building society account, paying bills collecting rent, benefits or a pension, selling a property and the typos of medical care that you would receive.
The acceptance of an LPA in another country depends on the third party or authority receiving the document.
Currently, there is no legal right of acceptance and enforcement for an LPA made in England in another jurisdiction.
Local requirements are likely to vary within each country. You should always consider whether it is sensible to make a Power of Attorney in each country where you hold assets, as this can minimise delay if the authority is needed urgently in the future.
It is common for another country to require:
• An office copy of the LPA certified as a true copy by a notary public.
• A translation of the LPA into the local language.
• A power of attorney created in their own jurisdiction and according to their laws.
Amy and Walter retired to Spain from England five years ago. Before they left, they made LPAs appointing each other as attorney. Amy has an investment portfolio in Spain that is held in her sole name and now has dementia. She is still living at home, but Walter is struggling to provide the necessary care. He needs to release some funds from Amy’s investment portfolio to employ a live-in carer.
Walter must approach the organisation holding the portfolio and ask them whether they are prepared to recognise his authority under the LPA. He may find this task easier if he has a copy of the LPA certified by a notary or it is translated into Spanish. If the organisation refuses to accept his authority, he must approach the courts in Spain. Whether or not the LPA can be accepted, recognised and enforced is a question under the law of Spain.
Amy and Walter should have been advised to make Powers of Attorney in Spain while they both had capacity to do so. Walter should consider making a Spanish Power of Attorney now to avoid the same issues affecting him in the future in respect of his Spanish assets.
When there is a possibility that an LPA made in England will be used in another country, there are steps that can be taken to make the acceptance of the document more likely, as follows:
• Create the LPA while you are still resident in England, not after you move abroad. This is because residence is the main factor for determining the validity of the LPA.
• Include a choice of law clause in the instructions section, nominating the law of England and Wales as the applicable law. The prescribed form of LPA does not state that it is governed by the law of England. A foreign jurisdiction considering an LPA will want to know what law the document is governed by, so it is good practice to make this explicit by including a choice of law clause.
• Choose a notary public to act as the certificate provider and to be present when the Power of Attorney is signed by all parties so that they can certify the valid execution of the LPA. The signature and seal of a notary is generally accepted worldwide as a sign that the document is authentic.
• Put in place a power of attorney in each jurisdiction that you hold assets
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