Lasting Powers of Attorney – Part 2

Lasting Powers of Attorney – Part 2

In my blog last week I wrote about Lasting Powers of Attorney and the reasons why an LPA should be made [in order to ensure that someone will have legal authority to look after your financial affairs and health and medical concerns in the event that you might one day lose mental capacity].

By coincidence I have had two cases to deal with recently which relate to this.

A Canadian lady came to see me. She was in England for a short visit to see her son who now lives permanently in England. During her stay she wished to sign and notarize a Canadian document which is the Canadian equivalent of the English LPA. Once notarized the document will be recognized and accepted in Canada.

However its form of wording was completely different to the English LPA document and it would not be accepted or understood as an LPA by the English Guardianship Office (The Court of Protection)

I asked the lady whether she has any other family in Canada and the answer is that no, her only close relatives are in England.

This does very much raise the question as to how her English resident son will actually do the job of being her Protector if ever she should need him to.

One imagines that the reality is, if she should be ever reduced to a state of incomprehension and needing full time care, that he would make arrangements for her to come to England to live in a care home here.

The obvious problem then would be that the son does not hold an English LPA and this would then cause obvious difficulties, in dealing with Banks and Doctors and Care Homes in England on her behalf.

My advice therefore was that in addition to the Canadian Power of Attorney an English Power should also be prepared.

A second case was similar but a mirror image in a way – an elderly man whom I visited in a Leeds Care Home was selling his property in Florida because his general state of health means that he will never be able to visit it again.

Happily, although this client was developing some confusions and in his conversation he did include some rather odd false memory, still the main purpose of my attendance upon him was clear in his mind. He knew that he had a house in America, he knew he was signing documents to sell it.

I suspect that if I should visit this client next year then his state of comprehension may not be as clear, unfortunately these things only seem to go one way.

This man has in fact made a Lasting Power of Attorney in England. The problem would be that if he had already lost capacity, I do not think that his Protector under the existing English Lasting Power of Attorney would have been able to persuade the Americans that this was a document that they could rely upon.

I think that he has dealt with his American investment somewhat in the nick of time. This American case is, in a way, a mirror image of the Canadian situation and it shows that  it is wise for anyone making a Lasting Power of Attorney in England also to make a Foreign equivalent for any jurisdiction in which they have assets or property.

Do please contact me whenever you require your legal documents for use abroad to be Notarised and/or endorsed with the FCO Apostille – email notary@atkinsonnotary.com or phone +44 (0) 1138160116

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More Thoughts About Powers Of Attorney And Loss of Capacity

More Thoughts About Powers Of Attorney And Loss of Capacity

For those of us who are not getting any younger  [does that strike a chord with you?]  the statistic that a third of people aged 65 or over at death will be sufferers of a degree of Dementia makes very grim reading.

The arguments in favour of making a Power of Attorney in order to appoint trusted friends or family members to take a protective role, if mental capacity should be lost, are well known and I hope obvious.

There is no reason why a person should wait until mental health begins to deteriorate before preparing a Power of Attorney. Quite the opposite, the time to do this is as soon as possible and certainly before Mental Powers wane.

For this reason many fit and healthy people in their 30s and 40s have already made such Powers of Attorneys.

Any such Powers of Attorney made in England before October 2007 were called “Enduring Powers of Attorney” and they were very easy to make. The Enduring Power of Attorney remains in force after the Donor loses mental capacity and the appointed Attorney can deal with all the financial and property matters of the “Patient” thereafter subject to certain registration formalities.

However an Enduring Power of Attorney does not act to delegate responsibility for Health and other such Welfare concerns which therefore remain a matter for Medical Professionals or Social Workers without the benefit of any responsible Attorney to give instructions.

Since October 2007 the Authority document in England is called a “Lasting Power of Attorney” [LPA] and can be made in two parts, – one to deal with Finances and one to deal with Health and Welfare issues.

If a person loses mental capacity without having made an LPA, their relatives or close friends can still try to help, but would need to make a successful application to the Court [the Guardianship Office] which costs a lot of time and money. If different persons in opposition to each other make similar applications, the case can even become a form of contest and the Court has to make a ruling after perhaps a very expensive course of deliberation.

One point I would just highlight since it has come to my notice very recently is that when you make a new Lasting Power of Attorney in order to take advantage of the ability to appoint a Health and Welfare attorney, you should consider –have you already made an Enduring Power of Attorney in or before 2007?  Difficulties can arise when Patients lose mental capacity and it is found that they made an Enduring Power of Attorney before 2007 and also Lasting Power of Attorney after 2007 and, by those two equally valid documents, appointed two different Attorneys.

So, just as a Will should state that it is intended to revoke earlier wills, so a Lasting Power should for clarity and the avoidance of argument, state whether or not it is intended to revoke any earlier EPA or whether two Attorneys are expected to work alongside each other.

If you would like to draw up an LPA, please get in touch and I will put you in contact with a specialist Solicitor who can take your instructions. And of course, when you are signing a foreign LPA equivalent, I can notarise it as necessary. As ever, please do contact me whenever I can assist whether for a document in front of you, or just for a general chat (Louise and I are friendly and approachable! Truly!). notary@atkinsonnotary.com or +44 (0)113 816 0116

French property sale or Income? Register your tax refund claim now – or lose it.

French Rental property income?
French property sale?
Register your tax refund claim now.

There has been little except bad news for English people with French property investments over the past few years.

In a week when the newspapers have reported the opinion of the US Chief Executive of Titan International that “France might as well be a communist country” – there may at last be a gleam of light among all the black clouds.

The problem as you will know if you are an investor in French property – whether as a buy-to-let owner or someone who has recently sold a French holiday home – is that the French have been applying additional taxes, over and above normal income tax, of 15.5% to income from rents or to the base rate [of 19%] of capital gains tax.

This extra is called the “social contribution” and has no equivalent in the English Tax system. One can understand that French residents in France might be required to make social contributions to the infrastructure of France, but the argument seems harder to apply to citizens of other EU countries who already make contributions in their Home Country income tax, and council tax in respect of their main homes. Although English people are of course citizens of the European Union, they will receive no credit for French Tax (social contribution) against their UK tax bill.

It now appears [although the actual detail is somewhat vague] that a case currently proceeding through the courts of justice of the European Union (the case of Gerard de Ruyter) may decide that it is illegal under EU law for France to charge non-French residents with social contribution tax.

It seems that the case is not yet finally decided and it further seems that decision of one Judge in one case will not of itself immediately change the law of France nevertheless one point seems clear:
WHETHER OR NOT A TAX REFUND WILL BE DUE TO YOU, YOU WILL LOSE THE CHANCE OF IT IF YOU DO NOT APPLY THIS MONTH – ON OR BEFORE 31st DECEMBER 2014

It may soon be possible for English people who have been charged the social contribution to obtain a refund – but the even more clear likelihood is that the final date to lodge a claim in respect of tax levied/paid in 2012 or in 2013 is the last day of this current year 31st December 2014.

Please print this article and take it to your legal advisers who act for you in France for guidance as to how to make your claim to the French tax authorities.

Please be warned that time is fast running out.

And of course, do contact me if I can assist and whenever you need Notarial certification or Legalisation – at http://www.atkinsonnotary.com or phone me on 0113 816 0116 (internationally 0044 113 8160116)