A growing number of us are buying homes abroad despite the downturn. Perhaps you are in the fortunate position of owning foreign property or aspire to have your own place in the sun, or maybe you are a foreign national with property in England…
But what would happen to those assets if you lose mental capacity gradually following an illness, or suddenly following an accident? Would someone acting on your behalf be able to manage or recover your property from another country?
Unfortunately, there is no simple answer. Each country has its own law governing mental capacity and so it depends in which country your property is situated as to which set of rules prevails. Getting the right advice can be crucial.
In England, for example, an individual can execute a ‘Lasting Power of Attorney’ (LPA) which gives someone appointed by you the authority to make decisions about your assets and/or wellbeing when you are no longer able to do so. You can only make an LPA if you have the mental capacity to do so. English LPAs are not automatically recognised by other jurisdictions and often you will need expert help to smooth the process. For example, you may struggle to convince a notaire in rural France to recognise an English LPA without the help of an English solicitor.
If you do not have an LPA, the person trying to manage your affairs may be forced to argue your case in a foreign court (which will be very difficult, costly and time consuming) or even wait until the owner of the asset dies and then try to secure the asset through the local probate process.
This may be even more difficult because the laws of succession (who gets what when you die) differs in different jurisdictions, which means the people you wish to benefit from your estate may not do so, even if you have a will.
Foreign equivalents to an LPA are not always recognised in England – it is important that foreign nationals with UK assets make an English LPA to avoid doubt.
Content written and provided by Dan Harris.
Stone King has significant experience and expertise in helping recover foreign assets and dealing with the affairs of people who lack capacity and can help:
- By providing practical solutions and liaising with foreign counter-parts.
- By helping your English LPA be recognised abroad.
- With the process of drawing up a foreign LPA – such as a French mandat de protection future.
- By guiding you through your options if you wish to use a foreign LPA to manage English property.
- By helping you make an English LPA to deal with your UK assets.Stone King can also advise you on international family, succession, property and estate planning matters.For more information please contact Dan Harris at Stone King LLP on 01225 326761