International powers of attorney
16 / 07 / 2018
Clients often ask us as to whether their English Power of Attorney (either a Lasting Power of Attorney – an “LPA” – or its predecessor, an Enduring Power of Attorney – “EPA”) can be used abroad or whether a foreign Power of Attorney can be used in England. The rules governing the enforceability of Powers of Attorney in another country are governed by the Hague Convention on the Protection of Adults (2000).
Surprisingly, the UK has only ratified the Convention in respect of Scotland. As a consequence, Scottish Continuing Powers of Attorney and Welfare Powers of Attorney may be recognised by those countries who have also ratified the Convention (France, Germany and Switzerland) as a certificate can be issued giving the Scottish Power of Attorney legal status in that country. However, it is not possible to do similarly for English LPAs and EPAs. There is provision in the Mental Capacity Act 2005 of England and Wales for institutions (such as banks) to recognise foreign Powers of Attorney; but in reality, this is unlikely to happen and the attorney will need to seek a specific declaration from the Court of Protection.
The Court of Protection for England and Wales has jurisdiction over issues concerning the property and welfare of those who are mentally capable and habitually resident here. The Court can, for example, protect an “adult with incapacity”, or their property, by providing a regime to administer, conserve or dispose of the adult’s property in accordance with that adult’s best interests. There could otherwise be a stalemate situation as the adult would not be legally capable of dealing with their property and any appointed attorneys under a foreign Power of Attorney would not be recognised. This route is not as straightforward as a simple recognition of the foreign Power of Attorney, as promoted by the Convention, but should achieve similar ends.
Unfortunately, until the UK ratifies the Convention for all parts of the UK, the rules remain confused. In practice, to avoid complications, delay and potential expense, we would always advise clients to have an LPA if they spend the majority of their time in the UK and/or hold substantial assets here, and ensure they put an equivalent Power of Attorney in place in other countries in which they spend time and/or have assets.