The Future Is Uncertain – Prepare For It!

It seems to me that most English men and women love to own property. Far more than say the Germans or any of our other European neighbours. It’s practically a definition of a successful business career these days to be the owner a second home, typically in Spain, but often in Italy, France or nowadays even in Bulgaria and Croatia.

My job is often concerned in assisting with such sales and purchases of course, but this blog is about a downside we perhaps do not want to think about. Our successful careers will end and then retirement comes. Do you retire to live in your second home, or simply continue to use it for longer holidays?

Whatever the decision as years pass, one day we all die. If we are lucky we get old first. For some of us, there is a waning or loss of mental capacity. From where I sit as a Notary in England, there is a growing trend of problems associated with the combination of old age and foreign property ownership.

Issue of residence, citizenship and domicile arise, with conflict between the laws of the various Countries. It is even possible for one person to be a citizen of one country, a resident of another and with Domicile in a third. Some countries recognise the concept of the “closest connexion”. There is no one agreed system around the world nor even in Europe about this.

So a Spanish Bank is unlikely quickly to recognise an English Enduring Power of Attorney, nor an English Bank an Australian one. A Will made in England might well apply to Spanish Property but it might not, dependent upon domicile etc. How do you ensure that the Spanish lawyers will understand that.

At present if a person has granted an English Enduring Power to, say, his son then there is no way that son can then then appoint a Spanish lawyer as his father’s Attorney without the need for an expensive time consuming Court application.

There are moves in Europe to assist cross border recognition of the rules and laws of other Countries but it is likely to be many years yet before there is any real structure in place. In the meantime, the golden rule must be, make a Will and make a Power of Attorney to deal with the possibility of loss of mental capacity. And make a separate Will and a separate power, for use in each country in which you have property, and also, for each Country where your Attorneys live.

If you live in England now with property in Spain, but your close family have gone to live in Australia, they may want to look after you in Australia if a time comes when you need their daily care. Not too easy for them to manage your affairs over in Australia, if you have only made English and Spanish Powers!