Charlotte Macdonald is a Senior Associate Solicitor (consultant) in Stone King’s international and cross-border team.
Charlotte answers legal and practical questions that are often asked by her clients in relation to France; whether that be buying or selling property in France, inheritance law, or how inheritance and capital gains tax are treated between the UK and France.
Here, she looks at whether there is any point in having an English and Welsh Lasting Power of Attorney if you are resident in France.
If you are resident in France, is there any point in having an English and Welsh Lasting Power of Attorney?
What is a Lasting Power of Attorney (‘LPA’)?
An LPA is a legal document under which you (the ‘donor’) give another person or people (the ‘attorney/ies’) authority to act for you when you no longer have the capacity to act for your yourself.
For example, if you are involved in a car crash and receive a head injury or are placed in a coma, or if you develop dementia.
There are two types; ‘financial and property affairs’ and ‘health and welfare’.
The financial and property affairs LPA will give your attorney the ability to open and close bank accounts for you, manage your investments, buy and sell property and pay your bills. The attorney is generally not able to make gifts on your behalf or make a new Will for you (although they can make a court application to do this and the court will decide if it would be in your best interests to do this).
The health and welfare allows your attorney to made decisions relating to your medical care and more general day to day care including the drugs you take, where you live and how you are looked after. You can also give your attorney the ability to refuse life-sustaining treatment on your behalf.
What happens if you don’t have an LPA
If you lose your mental capacity whilst owning assets in England or Wales and you don’t have an LPA, a person (usually a family member) will have to apply to the Court of Protection, asking to become your ‘deputy’.
This process is more time consuming and expensive than setting up and registering an LPA.
The Court provides a high level of oversight. Your deputy must provide the court with a bond and annual accounts.
Benefits of a Lasting Power of Attorney whilst living in France
If you own assets in the UK; property, bank accounts, pensions etc, they will need to be managed in the event that you lose mental capacity.
Putting an LPA in place whilst you are well, will dramatically reduce the stress for your family if you lose mental capacity, and will ensure that the people that you trust are put in control of your affairs when you can no longer manage them.
It is also possible to opt for your LPA for property and financial affairs to be used whilst you have mental capacity. This can have practical benefits if you have to sign documentation in person but cannot make it back to the UK. If your attorney is UK based, they could sign on your behalf.
Can you set up an LPA from France or do you need to be in England?
The good news is that you don’t need to be in the UK to set up your LPA. You can visit the UK government website, or appoint a solicitor to put your LPAs in place.
Many solicitors, especially those working in the international field such as Stone King, can work for you remotely, meaning that there is no need to return to the UK if you do not wish to travel.
The process will however involve you, your attorney/ies, and your certificate provider (the person who confirms that you have the required mental capacity to set up an LPA) having to physically sign the LPA. If you are located in different countries then you will need to post the LPA between you.
How much does it cost?
The Office of the Public Guardian (the public body tasked with managing LPAs) currently charges £82 per LPA registration (an LPA must be registered before it can be used). If you instruct a solicitor to help you, they will also charge for their time.
How can I revoke an LPA?
If you no longer wish to keep your LPA, it is possible to revoke it by sending the original LPA, along with a deed of revocation, to the OPG.
There is no automatic recognition of English and Welsh LPAs in France and whilst it may be possible to persuade certain institutions to recognise your LPA (such as your French bank), recognition is by no means universal. Therefore, if you need a French equivalent you will need to visit your notaire and ask about mandats de protection future (which although not exactly the same, are the closest equivalent).
If you have only set up an equivalent in France but no English and Welsh LPAs, and you lose mental capacity, it should be possible to have the French equivalent recognised in the UK by making an application to the Court of Protection under the Mental Capacity Act 2005.
That said, such an application will be much more costly, from a time, financial and emotional point of view, than simply putting LPAs in place whilst you are well.
In short, if you are French resident but still own assets in the UK it is sensible to put LPAs in place.
For more information please contact the international and cross-border team at Stone King LLP –Charlotte Macdonald, Dan Harris, Raquel Ugalde, Emma Seaton, Bryony Anning and Marina Emmanouel either by calling +44(0)1225 337599 or by emailing [email protected].
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