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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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Testamentary Capacity and Banks v Goodfellow 1870

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

 

In 1870, a three-part test for Testamentary Capacity was laid down in what is now referred to as
Banks v Goodfellow (1870). 

It sets out that a Testator has capacity if:

  1. They understand the nature of making a Will and its effects;
  2. They understand the extent of the property of which they are disposing; and
  3. They are able to comprehend and appreciate the claims to which they ought to give effect and are not affected by any disorder of the mind that influences their will in disposing of their property.

Solicitors and Will writers therefore are duty-bound to ask certain pertinent questions of their clients when preparing Wills, so that they can satisfy themselves that the test has been met.

If in any way the test has not been met, then after the Testators death, the Will could easily be challenged under the claim that full Testamentary Capacity was not established.

In order to satisfy these conditions, our Advisor will need to establish the following:

  1. Your name and full personal details including date of birth, etc.
  2. The makeup of your immediate family – even if certain members are going to be excluded from the Will.
  3. A broad understanding of your estate notated in the form of a Statement of Assets
  4. What gifts are being given, to whom and under what circumstances.
  5. Questions regarding your current state of health and any medication that you may be taking, if relevant to establishing coherence of thought.

Once Testamentary Capacity has been established, this may be clearly noted as such, at the very beginning of your Will.

Because we keep very accurate attendance notes and records of all of our conversations with you, we are 100% confident that once a Will produced by ourselves is signed and witnessed, it is from then on completely robust and steadfast against any potential claim of insufficient mental capacity, assuming all the information required to establish said capacity has been forthcoming.

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