More on Enduring and Lasting Powers of Attorney – Have it witnessed by a Notary
The need to appoint an Attorney to act in one’s affairs in the event of the loss of mental capacity is now well understood in England and Wales. Although, as with taking exercise and drinking in moderation, more people approve the idea than actually adopt it!
Clearly a person suffering from dementia or loss of mental capacity from any other cause is not in a position to manage their affairs and by the same token not in a position to make a Power of Attorney appointing someone else.
Accordingly such a Power of Attorney needs to be made before it becomes impossible – that is to say whilst “of mental capacity.”
When the need for such a document was originally accepted by Parliament in Britain, it made provision for a document called an Enduring Power of Attorney. Prior to that a Power of Attorney would come to an end in the event of the original donor losing mental capacity. This meant that an Enduring Power of Attorney was a possibility in English law.
Once parliament had created the legal framework for an Enduring Power of Attorney it became possible to have a document which would continue in its effect, after the person who originally prepared and granted it, lost understanding of its meaning.
It was subsequently considered dangerous and against the public interest for a Power of Attorney to be “enduring” without a stricter supervision than was originally ordered by Parliament. Parliament felt that under the original law they had made it too easy, and so capable of abuse
I do not know how many actually cases there were where an elderly possibly confused person was tricked in to making an Enduring Power of Attorney by acquaintances or relatives but yes, if it was easily possible for such a powerful document to be prepared whilst not fully understood by the donor then steps should have been taken to change the rules.
Accordingly in England and Wales as from 1st October 2007 it became impossible to make a new Enduring Power of Attorney. The way in which a person could be appointed Attorney to act after loss of mental capacity was through the creation of a new document called a “Lasting Power of Attorney”. The rules about the creation of a Lasting Power of Attorney are much stricter and its functions are split between the appointment of an Attorney to manage property and financial affairs and the possibility of making a different person Attorney for dealing with day to day personal welfare matters.
It is necessary in order to validate a Lasting Power of Attorney, to have a “Certificate of Capacity” drawn up by an independent party; a solicitor or a doctor would be typical. These people would be confirming that the Donor of the power has the necessary mental capacity to understand the nature of the document and to make an informed decision about it.
This brief history indicates that the Lasting Power of Attorney is a document peculiar to this Country and therefore not a creature of the law of France, Spain or Turkey or any of the Countries where English people often have second homes or apartments or financial interests.
The problem arises therefore when a person domiciled resident in England and Wales loses mental capacity and becomes unable to manage their own affairs -that even if they have made an English Lasting Power of Attorney or one of the earlier Enduring Power of Attorney still these are documents made under English laws and therefore not directly compliant with the equivalent documents for which the laws of Foreign Countries may have provided.
As I have said in an earlier blog, the better course of action is to make such Powers of Attorney separately, one for each country in which there are assets.
It is going to take a great many years I think before I think there can be harmonisation of the rules in the Counties of Europe let alone throughout the world.
There is a Hague Convention XXXV which attempts to collate the various laws of European Countries but the terms of it differ considerably from our English law the Mental Capacity Act of 2005 and schedule 3. See http://www.legislation.gov.uk/ukpga/2005/9/schedule/3 for an indication of the complexity of the issue. This is the law of England as to which Laws should be applied to Lasting Powers when there is an international element. So there could still be a conflict between different countries over implementation of the Powers, even given that the documents are recognised as being valid.
What I do think would be very helpful, as a matter of course for any English person (and firm of solicitors) engaged in preparing Lasting Powers of Attorney would be to ensure that the initial execution of the Power of Attorney in England be witnessed by a Notary Public.
Whilst this cannot be a guarantee, and the better thing undoubtedly is a separate Power for each Country, the simple precaution of having the English Power Notarised means that the foreign jurisdiction is far more likely to look kindly upon the document. It is much more likely that an English Power so witnessed would be accepted in other European countries than if it were not.(And particularly in those which are not signatories to Hague XXXV for example Italy.)