Mental capacity: international aspects

Increasing numbers of people in England and Wales own property and assets abroad. This means that solicitors whose practice does not routinely deal with international issues are seeing more international cases.

This guidance aims to give you basic practical assistance, but this is a complex, specialist topic and you cannot advise without knowing or consulting the appropriate legal resources.

If you and your firm are not familiar with this area of practice, you should consider whether it’s appropriate for you to give advice.

This guidance relates only to:

• lasting powers of attorney for property and financial affairs (LPAs)
• enduring powers of attorney (EPAs)
• some aspects of deputyship

It does not deal with health and welfare lasting powers of attorney, which can involve different issues. 

Private international law issues that arise when an individual living, or owning property, abroad loses capacity include:

• which country's courts have jurisdiction to make orders in relation to that person's property and affairs
• whether a foreign jurisdiction will recognise and enforce the orders of the courts of England and Wales, or accept an LPA or EPA which is valid in England and Wales

The approach to mental capacity in other jurisdictions (including Scotland and Northern Ireland) may be different from that in England and Wales. It may also differ considerably from the provisions of the Mental Capacity Act 2005.

The Hague Convention XXXV of 13 January 2000 on the International Protection of Adults (also known as the 2000 Hague Convention) aims to assist in cross-border mental capacity cases. The convention has been ratified by a number of European states but only Scotland has ratified it within the UK. This means you cannot rely on the convention even where the other jurisdiction is a signatory.

Where the client owns property overseas and has since lost mental capacity, you may have to deal with that property. For example, they may need to sell an asset to pay for their care.

Enduring power of attorney (EPA) or lasting power of attorney (LPA)       

The first step is to find out if the client has made the local equivalent of an EPA or LPA in the foreign jurisdiction. If they have, you should check whether you can use this in the jurisdiction by taking local advice.

If the client has no local equivalent but does have an EPA or LPA registered with the Office of the Public Guardian (or by the Court of Protection in the case of an EPA registered before 1 October 2007), you should take local advice to find out whether it will be accepted in the foreign jurisdiction.

See obtaining foreign legal advice 

Local requirements

If the EPA or LPA is acceptable in the foreign jurisdiction, there may be local requirements to meet before it can be used.

In many cases the local requirements will not be straightforward, and may be interpreted differently by lawyers or notaries in the jurisdiction. For example, they may be more or less cautious as to the steps required before it can be used.

Certification

In some countries, third parties relying on a registered EPA or LPA will need to have a copy of it certified as a true copy and then have an apostille affixed to it by the Foreign & Commonwealth Office (FCO).

See Notarisation, certification, the apostille and legislation for more information about this process

Translation

An English or Welsh EPA or LPA may have to be translated into the language of the foreign jurisdiction, and have a notarial certificate verifying the accuracy of the translation.

This can be done by:

• a legal translation company
• a general public notary
• a firm of scrivener notaries

Scrivener notaries are public notaries who are proficient in one or more foreign languages and have some familiarity with the legal requirements of those countries. They’ll often be able to provide both the translation and the notarial services, at least in the most common European languages, such as French.

You may be able to apply to the Court of Protection for a deputyship order if the client who has lost mental capacity:

• does not have an EPA or LPA in the form prescribed
• is habitually resident in England and Wales
• owns assets in another jurisdiction

A deputyship order appoints a deputy to manage the property or affairs of a person who lacks mental capacity.

You might need to make a formal application to a local court for a deputyship order to be recognised in the foreign jurisdiction. Once the foreign court is satisfied with the deputy's standing, it can:

• confirm the deputy's authority to act within the foreign jurisdiction
• appoint a local guardian (similar to or the equivalent of a deputy) to act and account to the deputy for any assets realised

You might be able to make an application for a deputyship order in the English court to cover overseas property if your client is:

• habitually resident in a foreign jurisdiction
• has some assets in England and Wales as well as assets overseas

However, this is not a straightforward procedure and the order may not be recognised in the foreign jurisdiction. You should seek foreign legal advice in each case.

For most cases, it will be easier to bring the equivalent of deputyship proceedings in either the jurisdiction where the individual is habitually resident or the jurisdiction where the asset is situated.

You may need to take a similar approach in cases where the client’s EPA or LPA is not recognised in the foreign jurisdiction.

In some cases, it may be worth discussing the possibility of future loss of mental capacity with a client who plans to move or buy assets abroad.

Ideally you should do this before their move or purchase. You might need specialist advice if it involves issues in addition to mental capacity.

Instructing a foreign lawyer

If your client wants to make plans for possible future mental incapacity, they'll generally need to get local advice in the jurisdiction they wish to live or own property in.

Many jurisdictions have well-developed laws governing the loss of mental capacity (or competence) and allow an individual to make arrangements in advance. For example, many states in the USA permit a person to execute a durable power of attorney, which is similar to an LPA. With this they can appoint an attorney to act for them in their property matters and other affairs if they lose mental capacity.

Not all jurisdictions have the equivalents of EPAs or LPAs. Some foreign jurisdictions may recognise an EPA or LPA made under the law of England and Wales, provided certain local formalities or other requirements are met.

See Obtaining foreign legal advice 

Advising on the law of a foreign jurisdiction

Your client may want to know if their EPA or LPA will be recognised in the foreign jurisdiction. As this will depend on the law of the foreign jurisdiction, this is not something a solicitor practising only in England and Wales is qualified to advise on.

You should recommend that your client seek local advice. As this is likely to incur additional cost and effort, and loss of mental capacity is only a possibility, your client may not want to take local advice at this stage. If they still want to make an LPA, it would be best to make it while they’re still habitually resident in England and Wales.

In this case, it may be useful to include a choice of law clause in the LPA, designating the law of England and Wales as the governing legal jurisdiction. This is not explicitly stated on the current LPA form but will be important for the foreign jurisdiction to know.

You can use the following clause, which has been agreed by the Office of the Public Guardian:

"This LPA is made in accordance with and governed by the law of England and Wales, which I specify shall be the law applicable to the existence, extent, modification and extinction of this power."

This clause can be added to the instructions field of the form.

Documents such as EPAs, LPAs and deputyships should be certified by a notary to prove the copy is true and accurate. It’s a good idea to get a translation of the document, and also have it confirmed as being accurate.

The primary mechanism for international recognition of documents such as EPAs, LPAs and deputyships is a certificate attached to a copy of the document by a public notary, or sometimes a solicitor, confirming that the copy is true and accurate. It’s also worth adding a translation of the document certified by the notary.

Apostille

Once a notary has confirmed that the document is validly executed, it may be accepted in a foreign jurisdiction. However, the foreign jurisdiction will often require an apostille as well.

An apostille is a certificate issued by the Foreign &  Commonwealth Office (FCO). It’s attached to the notarial certificate and confirms that the signature, seal or stamp on the EPA, LPA or deputyship document is genuine.

It does not certify the authenticity of the document or give approval of its content. It only confirms the:

• status of the person who gave the certificate
• relevant public notary or solicitor is known to the FCO (in the case of an EPA or LPA)

If the notarial certificate is given by a public notary qualified in England and Wales, they may be able to help prepare the appropriate form of notarial certificate, depending on the advice of the local notary or lawyer. They will also be able to obtain the apostille.

Due execution

In some cases the foreign lawyer or notary may require the certificate to be one of due execution, again with an apostille attached.

However, a certificate of due execution can generally only be given if the power was originally signed before the notary (that is, the public notary must have given the certificate at the time of signing). It will save time and costs if you can find this out before arranging the notary/apostille.

Additionally, where a trust corporation is acting as deputy or attorney, the foreign jurisdiction may need to see a notarised and translated copy of the articles of association, which specifies the company’s operations and purpose.

Some jurisdictions may accept an apostille certificate without a notarial certificate. This is more cost effective for the client, although it’s not a completely reliable route so it may be advisable to get a notarial certificate as well.

Registering with the Foreign & Commonwealth Office

The signatures of all public notaries are registered with the FCO.

To register your signature, you’ll need to provide the FCO with evidence of your identity and signature. Once this has been accepted, the FCO will affix an apostille to your certificate, verifying your identity.  

In some cases, using a solicitor's certificate may be simpler and cheaper than a public notary’s. You should first check whether it will be acceptable in the relevant jurisdiction. Some jurisdictions, particularly those based on civil law, may not recognise a certificate that has been given by a solicitor.

Obtaining an apostille

If you’re not using a public notary, and do not subscribe to the FCO's premium service to obtain apostilles, then you can apply for an apostille online.

You should always obtain advice from a practitioner suitably qualified in the jurisdiction’s law. Unless you are dual qualified, it’s not appropriate for you to provide advice on the local law yourself, even if you have previous practical experience of that jurisdiction.

Details of legal advisers in foreign jurisdictions are available from a variety of sources, including:

• the Society of Trust and Estate Practitioners
• the International Union of Notaries – lists notaries working in jurisdictions throughout the world
• the Notaries Society, which lists notaries in England and Wales
• the Society of Scrivener Notaries, which lists scrivener notaries
• chambers of notaries or local law societies in the relevant jurisdiction
• certain legal directories

Cross-border issues will inevitably add time and costs to a case. Your client may require additional advice in the local jurisdiction, and may also have to provide notarised and translated documents.

Your client should appreciate that different time zones, language differences and local procedures may all affect the speed and cost with which matters can be concluded.

This guidance primarily focuses on the recognition of a client’s interests overseas.

However, it’s good practice to be aware of provisions within the Court of Protection Rules (Part 23), accompanied by a Practice Direction (Practice Direction 23A), for international issues that may require the involvement of the Court of Protection. These could be relevant if, for example, a British national client is returning from a period of time overseas.

The Court of Protection has also given practical guidance, in Re Various applications concerning foreign representative powers [2019] EWCOP 52, regarding the options available in relation to foreign powers of attorney.      

Legislation

Mental Capacity Act 2005
The Hague Convention XXXV of 13 January 2000 on the International Protection of Adults  

Websites

Notaries Society
Society of Scrivener Notaries
International Union of Notaries
Foreign and Commonwealth Office
STEP guide to mental capacity in international jurisdictions
LPA forms and guidance
Re Various applications concerning foreign representative powers [2019] EWCOP 52 

Publications

Court of Protection Practice, appendix 1
Heywood & Massey, chapter 14
The International Protection of Adults (OUP, 2015)