Delegates. Usually, They Can’t Delegate. Not Always Convenient!

Delegates. Usually, They Can’t Delegate. Not Always Convenient!

As a Notary, I am consulted on a daily basis by people who have dealings in foreign countries, and wish to complete the necessary documentation here in England.

This is what I am for – to facilitate foreign dealings, by persons who cannot conveniently find the time or funds necessary to travel abroad to deal with those matters in person.

In most cases, the foreign jurisdiction issues a Power of Attorney to be signed in my presence. This is a mechanism which then enables your foreign lawyer to sign, in YOUR name, all of the foreign contracts, transfers, registrations, tax papers etc. which are necessary to achieve what you want.

So for the case of an adult person who is mentally and physically able to conduct their own business, the choice is between coming here to Leeds, and executing a Power of Attorney with me, or travelling to Spain, or Ulaanbaatar or wherever, in order to sign the papers there.

Which may take minutes, or weeks. Of your precious time.

So, the notarisation process is ideal to save time, for those who cannot travel for reasons of cost or pressure of work.

But what about those who simply cannot travel, or who could not deal with their own affairs even if they did travel? The Notary system would seem to be ideal for persons under disability. And in particular those with mental disability or legal incapacity.

Two classes of people in that category, are – first – children. They lack capacity under the Laws of England and Wales because of their minority. And second, persons who are adult but lack capacity because of mental impairment.

In the case of the adult under disability, the hope is that an Attorney has been appointed with either an Enduring or a Lasting Power of Attorney, documents which may have been executed by the Adult at a time before the loss of mental capacity.

If not, a suitable adult can apply to the “Court of Protection” – otherwise called the “Guardianship Office” Link here, – to be appointed by the Court as a Receiver or “Deputy”.

In the case of a child, a parent can often invoke the terms of The Children’s Act 1989 Link here.

So in England and Wales, there we are, an adult can represent the person who cannot represent him/herself.

So that’s that then? If someone has property abroad, and needs to sell it because the tragedy of dementia now means that there will be no more possibility to enjoy owning it, then the Attorney/Deputy of the Patient can come to see me in Leeds and sign the foreign Power of Attorney in the name of the Patient? That is what the Patient could do if they had capacity, after all.

And if some foreign Uncle or relative of a child might die and leave a Spanish mansion to his three year old nephew, then a parent can represent the child, because of The Children’s Act, s. 3, and sign the foreign Power of Attorney with me, to enable the asset to be transferred into the child’s name and then sold, Right?

Guess what? No. And No again.

The continuing Power of Attorney [whether “Lasting” or “Enduring”] or the direct appointment of a Deputy by the Guardianship office, does NOT include power for the Deputy to grant a new Power of Attorney to anyone else.

The legal reasoning is, that Fred the patient, or the Court itself, has appointed a suitable person “P” to act for Fred. The giver of the Power has thought long and hard and decided that P is the sort of reliable chap or lady who can be trusted to do the job properly and conscientiously.

They have not, in other words, given that power to P just so that P can hand over that Power to a foreign lawyer that Fred or the Court has never heard of, to sign deeds and documents for Fred abroad.

So, whilst P can travel abroad and do the foreign job, he cannot appoint a foreign lawyer as Attorney to be Fred’s representative to do the job instead.

And in the case of a parent, s3 of the Children Act does give power to a parent to represent the child in many ways, but it is limited. There is no power for the parent to sell the child’s property. So there can be no valid grant of a power of Attorney by a parent, to enable a foreign lawyer to sell a child’s inherited foreign property.

The obvious thing, is for the Attorney to go ahead and grant the foreign Power of Attorney – a pragmatic decision to do “what is best”. The chances are that if s/he does, all will be well. But the risks are that something will go wrong, and if it does, or if your child sues you later on reaching 18 years and legal majority, for selling something in 2017 which ten years later is worth ten times as much, you are very much on your own!

By which I mean – Personally liable, for taking an action which you had no right to take, however worthy your motives.

Which I think is a shame, but in these circumstances there may be no legal alternative than to make an expensive and slow Court application, for a Parent or Attorney who wants to do the right thing and do it legally.

The Law eh? No doubt from the best of intentions, the protections it provides can sometimes turn into straitjackets.

Music – link here

For advice on all of these matters and for all the more straightforward foreign dealings too, – as always – you can contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website www.atkinsonnotary.com

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