With an exponentially ageing population, the loss of mental capacity in later years is becoming an increasingly common issue. Figures from the Office for National Statistics show that dementia and Alzheimer’s disease were the leading causes of death in the UK in 2022.
When someone loses the mental capacity to make decisions, it is sometimes assumed that family members are automatically entitled to take decisions on behalf of that person. That is not the case, however.
The best way to ensure that decisions can continue to be made on behalf of someone who might lose mental capacity is for that person to put in place a Lasting Power of Attorney (LPA), while they still have the mental capacity to do so.
An LPA allows someone to give other people – their attorneys – the legal authority to take decisions relating to their finances, and relating to their health and care, after that person loses capacity to do so themselves.
For individuals who spend time (and who own assets) both abroad and in the UK, there is often a question as to whether a foreign power of attorney can be used in relation to their personal affairs in England (and, conversely, whether an English LPA can be used abroad).
In England, a foreign power of attorney may be accepted by banks and other institutions if it is valid in the country where it was made. In theory, attorneys under a foreign power of attorney may be able to act on behalf of someone who has lost capacity in England without any further documents being required.
In practice, however, English financial institutions and other organisations will often require additional legal confirmation of an attorney’s authority to act under a foreign power of attorney.
One way of achieving this is to apply to the Court of Protection for a Court Order which formally recognises a foreign power of attorney in English law. This is not always the best option, however, as it can be expensive and time-consuming.
For simplicity, and to avoid delay and expense, it will almost always be a better solution to put in place a separate LPA in England if someone spends a significant amount of time in the UK, or if they hold substantial assets here.
Similarly, equivalent powers of attorney should also be put in place in all other countries in which an individual spends time (and has assets). This is likely to be more straightforward than trying to use a power of attorney from one country in another.
Circumstances will vary for each individual. Specialist legal advice should be sought to ensure that those with interests in the UK and abroad have appropriate arrangements in place to ensure that their affairs can be looked after in all countries where they spend time (or where they have assets), in the event that they do lose mental capacity.