These days more people have relatives who either live abroad or have properties abroad. So, it is essential to understand how using a Lasting Power of Attorney abroad works. It is increasingly common for an individual to find themselves managing personal and legal affairs across international boundaries.
Whether it involves property transactions, financial management, or healthcare decisions, navigating legal frameworks in foreign jurisdictions can be complex and challenging.
Using a Lasting Power of Attorney Abroad: The Key Considerations
Now, onto the big question: Can the UK Lasting Power of Attorney (LPA) be used abroad? The short answer is yes, but it’s a bit more nuanced than that.
Recognition in Foreign Countries:
The recognition of LPAs varies from one country to another. Some countries may readily accept an LPA, while others might have different legal requirements or may not recognise it at all. It largely depends on the laws and regulations of the country where you intend to use the LPA.
Hague Convention (1961):
The Hague Convention 1961 (there are many different sections of this convention) is an international agreement aimed at simplifying the process of recognising and enforcing legal documents, including LPAs, across different countries.
WarningWithout going into too much detail, if the donor has lost mental capacity you may have to first go to the Court of Protection to get a court judgment on the loss of mental capacity. A Mental Capacity Assessment (MCA) may not be enough. Then you may have to go to court in the foreign country to ask the court to enforce your UK LPA and the MCA from the Court of Protection. This is because the relevant Hague Convention on Adult Protection has not been introduced for England, Wales and Northern Ireland, although it has been in Scotland. If the donor lives abroad, has any property or other assets abroad, you should get legal advice before it is too late. |
Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (1961)
If the relevant country abroad is a signatory to the Hague Convention 1961, there’s a better chance that the UK LPA will be recognised and accepted there. There are 125 Contracting Parties, check the list to see if the country is on it. However, it’s still wise to check the specific requirements and procedures involved in that country. For the documents to be legalised abroad you are likely to need an Apostille.
An Apostille is a certificate issued by the Foreign, Commonwealth and Development Office (Foreign Office). One of the functions of this government department is the legalisation of documents for international use. The Legalisation Office issues the apostille on UK documents that need to be used outside of the UK in an official capacity.
Steps for Obtaining an Apostille for a UK Lasting Power of Attorney
The process of obtaining an apostille for a UK LPA involves several steps:
1. Ensure Compliance: If you have a Lasting Power of Attorney registered with the Office of the Public Guardian (OPG) then this is a legal document. You should have the original document and make sure that you get a certified document as well.
2. Submit for Apostille: Submit the original LPA document to the UK Legalisation Office to get a paper-based or electronic version of the Apostille, the cost is currently £45.
3. Verification and Authentication: The Legalisation Office will verify the authenticity of the LPA. They then affix the apostille to the document, certifying its validity for use in countries party to the Hague Convention 1961.
4. International Recognition: With the apostille attached, the UK LPA becomes recognised and enforceable in countries that are signatories to the Hague Convention. This facilitates the execution of personal and legal affairs across borders.
Steps for submitting the LPA abroad
There are a few more steps that will probably need to be taken once you have the document apostilled. These are:
- getting the apostilled LPA professionally translated
- making sure that the translation is certified by the translation company; and
- the translated, apostilled LPA may also need to be certified by a lawyer in the relevant foreign country.
Regretfully, having done all this, it may still not be accepted and you may have to go to court so that the foreign court will order that the LPA be accepted. The reason why this is necessary is usually because the donor has lost mental capacity. This is then governed by the Hague Convention for the International Protection of Adults.
This all takes time and money so, to avoid this, the best advice is to make sure that the donor has named you as an attorney in the relevant country under their system before they lose capacity.
Hague Convention on the International Protection of Adults
This part of the Hague Convention introduced in 2000, (Hague Convention – IPA 2000) provides for the protection in international situations of adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests. This relates directly, of course, to those with dementia. So, even if the donor has appointed a UK LPA, once they have lost mental capacity through dementia, or for any other reason, the Hague Convention for Apostilled documents gets cancelled out.
The UK has ratified the Hague Convention – IPA 2000 but, only for Scotland. So, it does not currently apply to England, Wales and Northern Ireland, this is despite the UK government including the provision within the Mental Capacity Act 2005 (MCA). The provisions of the MCA only apply in domestic legislation, they do not extend internationally.
This is a big problem for those who have a parent or relative abroad who loses capacity. They will invariably have to go to court unless the donor has put measures in place before they lost capacity.
In May 2023, the European Commission (EC) published its long-awaited proposals “to better guarantee the rights of adults in need of protection or support in cross-border situations”. This is still just a proposal and will take time for countries to comply with.
Legal Advice and Assistance
Navigating legal matters, especially in foreign jurisdictions, can be complex. It’s advisable to seek legal advice from professionals who are well-versed in both UK law and the laws of the country where you’re residing or conducting affairs. They can provide tailored guidance and help ensure that your LPA is properly recognised and implemented abroad. The Society of Trust and Estate Practitioners (STEP) can often help with finding a relevant lawyer here and abroad and dealing with cross-border activities.
Practical Considerations
Even if your LPA is recognised abroad, there may still be practical challenges to consider. For instance, language barriers, differences in legal terminology, and administrative procedures could complicate matters. It’s important to be prepared for such eventualities and to have contingencies in place. Here are a few points to consider:
- Banks: give the bank the name and contact details of the attorney that is going to be dealing with the account in the event that the owner of the bank account cannot.
- Property: make sure that the attorney has the authority to deal with any property matters abroad.
- Advocate / lawyer: make sure that any foreign lawyer that has been used has the details of the attorney and has permission to speak to them.
The best advice is to make sure that you are fully aware of the pitfuls of dealing with a foreign country well before you have to. Engage a lawyer in the relevant country and make arrangements otherwise, it could take months or even years to get the authority under the LPA.
