Charlotte Macdonald looks at how your UK lasting power of attorney will be treated under French law
If you are looking to retire to the French countryside or perhaps purchase a beach home on the Med or a ski property in the Alps, you may want to consider setting up a lasting power of attorney. Doing this can help to alleviate your family’s worries when it comes to looking after you and your assets, should you lose mental capacity in the future.
WHAT IS A LASTING POWER OF ATTORNEY?
Under English and Welsh law, a lasting power of attorney (LPA) is a legal document in which a person (the donor) gives another person or people (the attorney/s) authority to make certain decisions on their behalf. There are two types of LPA:
• LPA for financial and property matters: Allows your attorney/s to deal with your property and finances. This could include, for example, selling your home, and managing your bank accounts.
• LPA for health and welfare matters: Gives your attorney/s the authority to make decisions about your healthcare and welfare.
Decisions can range from day-to-day (what you eat, where you live) to the very big decisions around life sustaining treatment.
You must make an LPA while you have mental capacity, and to be used, it must first be registered with the Office of the Public Guardian.
It is also possible to make a ‘general power of attorney’. However, a general power of attorney automatically comes to an end if the donor loses mental capacity.
Although the UK is one country, it is split into three legal jurisdictions: Scotland, Northern Ireland and England and Wales. The powers of attorney in Scotland and Northern Ireland are not the same as those in England and Wales although there are similarities.
WHAT IF I DON’T HAVE LPAS IN PLACE?
If you lose mental capacity and don’t have an LPA in place, your friends or family may need to apply to the Court of Protection and ask to be appointed as your ‘deputy’.
A deputy has similar powers to that of an attorney, but they will need to report at least once a year to the court, setting out all the decisions that they have made for you. The process of becoming appointed as a deputy is more time consuming and costly than setting up a LPA. And as you have already lost mental capacity, you have no say over who becomes your deputy.
RECOGNITION OF AN LPA IN FRANCE
It can be very difficult to have an Anglo-Welsh LPA recognised in France. When selling property, the notaire dealing with the sale may accept the authority of an LPA but they will usually require a certified translation of the LPA, which will need to be legalised for international use. In some instances, the notaire may also request for a solicitor to provide a legal opinion on the validity of the LPA.
