Enduring Powers of Attorney – Lasting Powers of Attorney

In England, the only Power of Attorney you can make which will remain in effect should you lose mental capacity, is a “Lasting Power of Attorney”.

It is too late to make a Will once you have died, and similarly it is too late to make a Lasting Power once you actually need one.

I think that every adult person in UK should have in place both a Will, and a Lasting Power of Attorney. Please do contact me to discuss this.

But the point I want to raise in this blog, is to look at the question from a Notary’s point of view, that is to say, internationally. In most Countries of the World the concept of a Lasting or Enduring Power of Attorney (one which remains in force even after the writer has lost mental capability) is understood and such a Power can be created validly.

The possible problem derives from the fact that each Country has its own rules, and so a Power created and valid in one Country is, more likely than not, UNACCEPTABLE in another Country.

The obvious difficulty is that if, as an example, your widowed father or mother or single Aunt has retired to Spain or South Africa or anywhere else then, if you are the nearest relative, you might have agreed to be their “Lasting Attorney”. That is, the person which will manage their affairs and look after them if they shoud lose their mental capacity to do so for themselves

If they have made a local Enduring power, they may not have provided for the likelihood that you will wish to look after them here in UK, once they need looking after. Unless you are willing to give up your job and move abroad to be their carer, that is.

BUT – once they arrive here in UK the foreign-made Power of Attorney in your favour may no longer be effective.   It may be possible to persuade the UK Court of Protection (the Guardianship Office) to abide by the terms of the foreign made document but this will be difficult and time consuming and of course expensive.

The Moral for all of us is – Make a lasting Power valid to be used in the Country you live in and Make Another One at the same time, valid for any country to which your Attorney may wish to move you in the event that you lose legal capacity and need permanent care.

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