Lasting powers of attorney: protecting overseas assets

Posted: 02/05/2019

With our society becoming much more international, increasing numbers of individuals are now likely to have assets outside the UK. Whilst most are aware of the need to consider putting in place wills abroad, many neglect to consider setting up lasting powers of attorney (LPAs), or an equivalent document in order to allow their attorneys to deal with their assets abroad. Such documents provide legal authority for the chosen attorney to deal with an individual’s affairs when they are incapable of handling them, for example, through ill-health or loss of mental or physical capacity.

Use of LPAs made in England in a foreign jurisdiction

Whether an LPA is accepted in another country depends upon the country and the institution receiving the document. Often, in order to be accepted, the following will be required:

• a certified copy of the LPA, attested by a notary public with an apostille attached by the Foreign and Commonwealth Office;
• a translated version of the LPA into the local language - a notarial certificate may be required in addition to certify the translation.

Hague Convention

The UK is a signatory to the Hague Convention, but this has not yet been ratified, and therefore the Convention does not yet have legal effect. As a result, there is no legal right for individuals relying on it to ensure that countries which have signed the Convention will have any legal right of acceptance or enforcement.

It is recommended that when an individual has assets in more than one country they should consider making a power of attorney in each country in order to minimise delays if the power of attorney is likely to be needed urgently in the future. This should state the jurisdiction in which that power applies expressly.

If this is not possible, then when creating an LPA in England and Wales, the following steps should be considered:

• create the LPA when the person is habitually resident in England and specifically record the fact that the donor is habitually resident in England when the LPA was executed. The reason for this is that both the Hague Convention and the Mental Capacity Act 2005 make habitual residence the key factor when determining the validity of the power;
• in the instructions section of the LPA, it should be specifically stated that English law should apply;
• ask a notary public to act as the certificate provider and to witness all signatures when the document is executed. This is generally accepted worldwide as a sign that the document is authentic.

It should be noted that the LPA in England and Wales does not specifically state that English and Welsh law applied. As a result, the Office of the Public Guardian has approved the following wording that can be included in the instruction or guidance part of the form:

‘This LPA is made in accordance with and governed by the law of England and Wales, which I specify shall be the law applicable to the existence, modification and extinction of this power.’

It is recommended that individuals with assets abroad consider these arrangements at an early stage to avoid onerous obligations when access to those assets is required in the future.

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