Foreign lasting powers of attorneyLasting powers of attorney:foreignForeign powers of attorneyCross-border matters:foreign powers of attorneyCross-border mattersLasting powers of attorney:foreignForeign powers of attorneyCross-border matters:foreign powers of attorneyCross-border mattersLasting powers of attorney:foreignForeign powers of attorneyCross-border matters:foreign powers of attorneyCross-border mattersLasting powers of attorney:foreignForeign powers of attorneyCross-border matters:foreign powers of attorneyCross-border matters
26.12An adult who is habitually resident other than in England and Wales at the point of making a lasting power of attorney (LPA)
1Which will include a power of like effect to an English LPA: MCA 2005 Sch 6 para 6(c). can specify that they want English law to apply to questions of existence, extent, modification or extinction, if:
•they do so in writing; and
•they are:
•a UK national;
•they have previously been habitually resident in England and Wales; or
•they have property here (subject to the limitation that they are only entitled to specify that English law applies in relation to the property here).
2MCA 2005 Sch 3 para 12(2)(b). If they do not make any such specification, then the law of the country in which they were habitually resident at the point of making the power will apply.
26.13A foreign LPA – ie made by someone habitually resident other than in England and Wales at the point of making it – is automatically effective in England and Wales if it satisfies the requirements of the law that applies under the test set out in the paragraph immediately above.
3This flows from MCA 2005 Sch 3 para 13(1)–(2). If, though, the foreign power is not exercised in a manner sufficient to guarantee the protection of the person or property of the donor, the Court of Protection can – if it has jurisdiction over the person or their property (applying the tests set out in para 26.6 above) disapply or modify the power.
4MCA 2005 Sch 3 para 14(1).26.14It should be noted that – as matters stand – the Office of the Public Guardian does not register foreign LPAs alongside those of English powers. If a bank or other institution is not willing to accept that a foreign LPA is effective, then, assuming that the jurisdictional test set out in para 26.6 above is met, it may be necessary to bring an application to the Court of Protection for a declaration that – for instance – the attorney is acting lawfully in exercising the foreign power in England and Wales. Such an application is not an application for recognition and enforcement;
5See Frimston et al, International protection of adults, chapter 9. This is by contrast with an application by a guardian appointed by a foreign court for recognition and enforcement of their appointment, which would be such an application. it is likely, however, that a specific procedure will be established in due course within the COPR for such applications to be made.
26.15The situation described immediately above is not satisfactory; in due course, if ratification of Hague 35 is extended to England and Wales, then the situation will improve – at least between contracting states to Hague 35. Under Article 38 of Hague 35, authorities of a contracting state to the Convention where a measure of protection has been taken or a power of representation confirmed can issue to the person entrusted with the protection of the adult’s person or property a certificate indicating the capacity in which the person is entitled to act and the powers conferred. Under a provision of the MCA 2005 which will come into force upon ratification with effect to England and Wales,
6They are not currently in force: Re PO at para 9. such a certificate would stand – unless the contrary is shown – as proof of the capacity in which the representative acts and the powers conferred upon them by the power of representation.