Victoria Mahon
- Partner
- Private Client
Managing overseas assets: the reach and limits of a Lasting Power of Attorney
A Lasting Power of Attorney can be a vital part of incapacity planning, but its effectiveness may stop at the border. For international families and individuals with overseas assets, understanding whether an English LPA will be recognised abroad, and when local arrangements are needed, can help avoid costly delays and complications at a critical time.
Making a Lasting Power of Attorney under the law of England and Wales (an “LPA“) – appointing someone to manage your affairs in England and Wales in the event of you lacking mental capacity to do so yourself – is an important part of your estate planning in respect of assets held here.
Why an English LPA may not be enough
If you have assets outside England and Wales, it should not be assumed that your LPA can deal with those assets. The legal position can vary significantly from one country to another, and even from one state to another where countries are divided into states, such as the USA. You should seek legal advice in the country (or state) where the assets are located as to whether an English LPA would be accepted there or if there is an equivalent document that can be put in place in that country that will ensure your assets can be managed in the event of your incapacity. Putting in place local documents is often simpler than trying to enforce an LPA in a foreign jurisdiction, which might involve Court proceedings.
Recognition of LPAs in overseas jurisdictions
Some countries will recognise an LPA, however, even once past that hurdle, you would need to find out if the institution holding the assets, for example a bank, in that country (or state) would accept the LPA. It can take some time and extensive steps to convince an institution that a foreign power of attorney is valid. For an LPA to be accepted abroad, it can often be the case (as a bare minimum) that a certified copy of it, attested by a notary public with an apostille attached by the Foreign and Commonwealth Office, together with a translated and certified version of the LPA in the local language, will be required. In addition to this, a legal opinion on the validity of the LPA in England and Wales would often be needed along with legal advice in the relevant country. Some countries may not, however, recognise an English LPA by any means. All of this has cost implications, not to mention delays when it may be the case that the LPA needs to be used urgently.
Coordinating multiple powers across jurisdictions
It is for these reasons that individuals who have assets in more than one country should consider putting in place a foreign power of attorney or equivalent in each country from the beginning.
If making a foreign power, care must be taken to ensure that it does not inadvertently revoke or contradict an existing LPA and vice versa.
Considerations for other interests
Interests held in company or partnership structures might require separate documentation to ensure their continuing management in the event of incapacity. The governing documents of those entities may contain their own provisions regarding decision-making and incapacity, and these should be reviewed alongside any powers of attorney to ensure appropriate planning and protections are in place.
Looking ahead
While putting in place multiple powers of attorney may involve additional upfront planning and expense, doing so can greatly reduce complexity, cost and delay in the future, ensuring that trusted individuals can manage assets efficiently across different jurisdictions at a time when support is needed most.
Please contact your usual Wedlake Bell adviser, or Victoria Mahon, for further information.
This article is for general information purposes only and does not constitute legal advice or a comprehensive statement of the law. Specific legal advice should always be sought in relation to individual circumstances.
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