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Lasting Powers of Attorney—Cross Border Concerns

Lasting Powers of Attorney—Cross Border Concerns

The international enforcement of Lasting Powers of Attorneys (LPAs) abroad, and similar foreign protective measures here, can be a complex area but it is an issue that is becoming more common. Where there is an international element to a donor’s arrangements, it is vital that their situation is clarified as soon as possible. If clarification is left until after 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 of England and Wales.

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 itself 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 the country in question’s laws.

Clients wishing to rely on an LPA abroad should seek advice in that country as soon as possible as a foreign power of attorney may be required.

Will a foreign Power of Attorney be accepted in England?

A foreign power of attorney or similar protective measure 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 his 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. The Office of the Public Guardian does not register foreign powers, but applications can be made to the courts for a declaration as to whether the foreign protective measure is to be recognised and enforced in England and Wales.

It may therefore be simpler and easier for the foreign national to make LPAs if possible for them to do so.

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