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Will A UK Lasting Power Of Attorney Or Deputyship Order Be Recognised Overseas?

BY: Paul / 0 COMMENTS / CATEGORIES: Power of Attorney

With an ageing population, mental capacity is a growing concern for many and Lasting Powers of Attorney (LPAs) can bring peace of mind to those who are worried about how their affairs will be dealt with if they lose mental capacity.

Equally, people owning assets overseas is on the rise, with one in six ‘baby-boomers’ owning a second home, according to a 2018 study by the Institute of Fiscal studies.

So, how do you make sure that your clients’ overseas assets are protected if they lose mental capacity? Is an English LPA or Deputyship Order sufficient?

The simple answer is: probably not!

Sara Janion, Director of Worldwide Lawyers – a UK-based company, which connects UK solicitors and legal practitioners to independent lawyers across the world – and Notary Public of England and Wales, explains:

“A UK Lasting Power of Attorney is highly unlikely to be recognised by foreign courts on its own, without further process.

“For instance, in Spain you would need to obtain a legalised and officially sworn translation of the LPA that it is acceptable under Spanish law. In addition, it’s usually also necessary to get a sworn statement from a lawyer with the appropriate expertise stating that, under English law, the LPA gives the attorneys authority to deal with the assets of the donor.

“All this makes getting a Spanish Court to recognise the English LPA a very complex process, not to mention the time and additional costs it takes.

“When it comes to Deputyship Orders, whilst it can be possible to get some foreign authorities to recognise an existing Deputyship, it’s expensive and time consuming at a time when it might be critical to have access to the foreign assets and when other funds may be limited or unavailable.

“As ‘attorneys’, who are given power under an English Lasting Power of Attorney, are not able to delegate their power, they are not able to appoint another ‘attorney’ to handle the foreign assets like properties or bank accounts. This means that, for example, in order to sell a property in Spain for someone who has lost mental capacity, the English ‘attorney’ would need to travel to Spain to deal with the transaction.

“A much easier option is to ensure that both an English LPA, covering any English affairs, and a separate Spanish Power or Attorney, which is specifically worded to authorise the appointed attorneys to deal with any Spanish assets in the event of loss of capacity, are prepared.

“How difficult or easy this process is will, of course, depend on what country the assets are located in.

“However, we always advise legal practitioners who are preparing an English LPA to consider how their client’s overseas assets will be dealt with and to encourage them to seek appropriate legal advice from a lawyer in that country in the same way they would recommend that anyone with assets overseas considers a separate will to cover those foreign effects. Ultimately, it’s about future-proofing. It’s hard enough for family members dealing with effects of a loved one losing mental capacity, without having an unnecessarily laborious and costly legal battle to be able to do what’s best for them.”

Article from Worldwide Lawyers

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WHEN A BENEFICIARY HAS A SUBSTANCE ABUSE

BY: Paul / 0 COMMENTS / CATEGORIES: Will Writing

Estate Planning Conundrum: What to do when a beneficiary has a substance abuse problem

 

Many parents have raised the issue of what to do when a child or grandchild struggles with substance abuse. With the recent death of Whitney Houston and her connection to substance abuse, it reminds me of what this means during the estate planning process. These parents are heartbroken and need guidance on how to address this difficult situation in their estate planning documents. Substance abuse – whether it’s alcohol, prescription drugs, or illegal narcotics – affects many of the families we advise. As a result, we developed a list of questions for families to consider when designing their estate plan:

  1. Has the beneficiary ever been diagnosed with a mental illness?
  2. Is the beneficiary having a particularly hard time – is divorce on the horizon? Has he lost his business? Does he gamble?
  3. What is his relationship with other family members?
  4. Who does he trust?
  5. Who is giving him money?
  6. Is he eligible for government assistance?
  7. Who is paying his health insurance?
  8. Is he employed? For how long? What types of jobs?
  9. Has he ever been treated for his addiction?
  10. Is he a member of Alcoholics Anonymous or a similar organisation?
  11. Do these issues run in the family?
  12. Has there been a family intervention?
  13. Is he open to counselling? Has this topic been addressed?
  14. Where is he living? Can he live alone?

I have noticed that substance abuse often masks other underlying mental health issues, including undiagnosed or untreated schizophrenia, bipolar disorder, and depression. That these issues are often part of a larger family pattern makes having the discussion much more difficult, but much more essential.

Families in Conflict An addicted child may have already taken a significant emotional, physical, and financial toll on the entire family. Parents who find it difficult to handle this child become increasingly disturbed when they consider who would step in if they are unable or unavailable. This helplessness often leads to anger, frustration, and conflict. One parent may want to cut off the beneficiary while the other parent cannot consider doing so. One parent may want to kick the child out of the home, while the other parent believes that doing so would make matters worse. These conflicts add stress to their marriage and the family at large. Grandparents may have different opinions than the parents. Siblings may already be resentful of their addicted sister or brother. In many families, the troubled child has already received significant emotional and financial assistance. His troubles have already taken centre stage at the dinner table. His presence in the home and attitude toward the family may have already created constant disruption. Estate Planning Tools and Options As complex and emotional as these issues are, families must address them. And they will welcome having an impartial, yet compassionate adviser to provide guidance, suggestions, and choices. One planning tool for parents to immediately consider is for that child to designate them as the agent under his health care proxy and his attorney in fact under the durable power of attorney. Without these documents, HIPPA will prohibit the parents from being involved with his treatment. Also, these documents give parents legal access to his health and financial records, which could be extremely important if it becomes necessary to apply for government benefits. Inevitably, an estate planning discussion will include disinheritance. In my experience, this is a subject frequently discussed and rarely implemented. No matter how angry and frustrated they are, parents still want to provide some sort of safety net for their child. This pressure to disinherit the troubled child may come from the sense that he has already taken more than his fair share of the family’s resources, possibly at the expense of the other, more responsible children. As the family’s adviser, however, you should ask the parents:

  • If you are not here, how will the child be cared for with no existing financial resources?
  • Who will be responsible?
  • Who will he call?
  • Will disinheriting him place a financial burden on your other children, or will they be able to walk away?

Establishing a Trust Rather than disinheriting him, a common solution is to establish a trust that includes him as a permissible beneficiary – or is only for his benefit during his lifetime. The hard decision, however, is who will serve as trustee after both parents die. Parents are understandably reluctant to place that burden on their other children or on other relatives. If there are significant assets, then choosing a corporate trustee is the simple choice. The other children or trusted friends or advisers can then have the right to remove or replace that trustee during the trust duration. If there are not sufficient assets to warrant a corporate trustee, then the parents must identify friends or trusted advisers – who should be paid for their services. The trustee should review the trust document to ensure that he has the right to resign from his office, and understand the mechanism for subsequent trustee appointments. The document should provide the trustee with the authority to expend funds for purposes such as counselling, detectives, drug testing, and private security. Trust

Terms and Provisions  After deciding on the line of succession and identifying who will operate the trust, parents need to focus on the various purposes for which the trustee may or may not distribute income and/or principal from the trust to the beneficiary. If the beneficiary is likely to require government assistance, then the terms of the trust must contemplate that. The trust document may also give the trustee authority to withhold payments if deemed advisable. This is often preferable to asking that trustee to determine whether a beneficiary is drug-free. Those suffering from substance abuse can be clever, and making such a determination is tricky. Many parents have a sense of shame or denial, and may rightly choose not to make these troubles public, or put them in a trust document that others can access. I encourage parents to write an annual side letter to the trustee that describes their observations and offers details that they are reluctant to share while living. This letter could be placed in a sealed envelope, kept with the original estate planning documents, and updated/revised as circumstances change. It can be comforting to the trustee to understand more about the parents’ goals and objectives from their own voice. Planning for the beneficiary with a substance abuse issue is complex and can have consequences that affect the entire family. Remind parents that life is a movie, not a snapshot. A plan created now should be good enough to handle today’s circumstances, yet flexible enough to contemplate the unknown. Encourage parents who are dealing with this difficult situation to revisit their plan every few years as circumstances change and evolve.

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