Powers of Attorney across borders: ensuring your LPA stands up abroad

There are two types of LPAs in England–a Health and Welfare LPA, which allows the attorneys to make decisions on the donor’s healthcare and welfare, such as medical decisions and where the donor is to live, as well as a Property and Financial Affairs LPA, which allows the attorneys to manage the donor’s financial matters, such as paying bills and taxes, managing pensions and selling assets. 

These documents are important as they will potentially avoid family and friends needing to apply to the Courts for a Deputyship Order, which is a longer and more expensive process. 

However, if the donor has assets in a foreign jurisdiction, it is important to remember that an English LPA may not be accepted. An English LPA is generally not automatically valid abroad, and therefore careful consideration has to be given to the legal requirements of the country where the foreign assets are held when drafting the LPA and some precautions can be taken in advance. 

How the English LPA will be treated will depend on each country’s own legal framework and requirements regarding powers of attorney and loss of capacity.  

For example, an English LPA will not be automatically accepted in Italy.  This means that if the donor has assets in Italy, an attorney nominated in an LPA will not be able to manage these assets using this document.  This can cause a wide range of issues, especially if funds are urgently needed.  

There are steps that can be taken to have an English LPA recognised in Italy to align with the country’s requirements, such as notarising and legalising the LPA.  A Notaio in Italy can further prepare a formal Deed confirming the validity of the LPA in England (which can only be done if English Law is applicable in accordance to Italian international private laws). 

However, it is important to remember that there is no guarantee that the LPA will be accepted in another country, not least by financial institutions which can be difficult about accepting powers of attorney that do not align precisely with their country’s accepted format. It may be necessary to start expensive court proceedings in the Courts of two jurisdictions to obtain the relevant Orders to manage financial affairs and make decisions on behalf of the donor, if these issues have not been considered in advance. 

To avoid the potential complications which will stem from trying to enforce an English LPA abroad, the donor could consider signing a local power of attorney (for example a 'Procura Generale' in Italy), for which specialist advice is needed.