The world is a lot smaller than it once was, thanks primarily to rapid technological advances – for one, communication is now lightning quick. In this more international society, many individuals are now more likely to have some form of asset in foreign climes.
Many people are already aware of the potential need for a foreign will if they have assets abroad, especially immoveable assets like property, due in part to some of the ‘forced heirship’ rules in some countries. Despite this, many people often overlook Lasting Powers of Attorney (LPAs) and how they’re properly implemented overseas – in fact, many still neglect to set one up in the first place!
In particular where foreign assets form part of a person’s estate, the earlier a person can set their LPAs up (and in the right way for the assets involved), the more likely it is that the people appointed in the LPAs will avoid onerous obligations when access to those foreign assets is required in the future.
Even if you’ve already taken steps to set up an LPA or perhaps have an existing Enduring Power of Attorney (EPA, from pre-2007), it would be wise to revisit the documents should you decide to move abroad to work or to retire.
Using UK LPAs in a foreign jurisdiction
Often, in order for a UK Lasting Power of Attorney to be accepted abroad, the following will usually be required:
- A certified copy of the LPA, signed off by a notary public with an apostille (a special sealed certificate) attached by the Foreign and Commonwealth Office; and
- A translation (into the appropriate local language) of the LPA in question – a notary’s certificate may also be required to certify the translation.
Making an LPA (or equivalent) in each country where you have assets is very likely to help minimise delays if your LPA is likely to be needed urgently in the future. Furthermore, the LPA will need to state accurately the jurisdiction in which the power applies.
If this is not possible, then the person giving the power should create the LPA while they’re habitually resident in England and specifically record that fact. This is because the law makes habitual residence the determining factor in considering the validity of an LPA.
Specialist advice should be sought, as there will be key instructions included in the LPA(s) as to each jurisdiction, and it may be necessary to ask a notary public to act as the Certificate Provider, and as a witness when the documents are executed. Using a notary public in this way will mean the document(s) will generally be accepted everywhere as a sign that the document is ‘authentic’.
What are the potential issues with LPA’s when it comes to mental capacity if living abroad?
Mental capacity plays a major role in the LPA-making process – after all, without capacity, you’ve lost the chance to make one. However, not all jurisdictions have the same approach to mental capacity. It may well depend on the specific circumstances, and questions need to be considered, such as:
- Will the jurisdiction (system of law) in the country you’re moving to be able to recognise and enforce an LPA (or EPA) that is valid in the England & Wales ; and
- Will the particular country’s courts be able to make orders in respect of your financial affairs?
Each jurisdiction may have their own approach to mental capacity and to how LPAs (or equivalent) can be used. The variously named (e.g. ‘continuing’ powers) can be revoked by incapacity, marriage or divorce, so again, specialist advice should be sought in connection with the jurisdiction for where the relevant power is to be used.
Even if you haven’t set up another foreign LPA (or equivalent), it may in some circumstances be acceptable for that LPA to be used in the foreign jurisdiction. Of course, you’d still be well-advised to seek foreign advice as to the LPAs’ acceptability, as there may still be local requirements that will have to be met before the documents are used.
Don’t leave it too late
No-one knows what the future may hold. If you plan to go abroad, even if just temporarily, you’re strongly advised to double check things like your Will and LPAs. If you’ve not got an LPA set up in the first place, it would be prudent to think about putting one in place, refer to our Insight on LPAs for more information.
Please note, Health and Welfare issues (dealt with under another type of LPA) can raise a different set of issues than those dealt with under this Insight for Property & Finance LPA, so more detailed, specialist advice is required.
Please don’t hesitate to get in touch with us today if you require any legal guidance and support on the above.
