Power of Attorney and international application.

[nicholsong]

This thread is aimed at tapping Members' experience of dealing with Power of Attorney(POA) and Lasting Power of Attorney(LPA)

I raise this topic on this forum because I know we have Members in other jurisdictions than UK, also Members who are in relationships in which partners ar Citizens of different States.

Many of you will know that i am a lawyer but my knowledge of Wills and Trusts is from 40 years ago and has not been updated.

This subject has arisen from a thread on here entitled 'Growing old is no fun'

Powers of Attorney can be granted for many purposes but I want to focus on ones granted to cover an older persons ability to make decisions on their own behalf in situations where the person loses the mental capacity to do so and needs the 'Attorney' to make those decisions.

In this respect I think that the two most important POAs are Financial POA and ones giving POA for Health and Welfare decisions. I will therefore split this into two separate discussions.

Financial POA

The international aspects of this for most people are quite simple, if all the assets are in one country, in that it is probably best to make the POA under the law of that country.

It might be more difficult if the assets are in two or more countries, in which case it may prove a problem of enforcing the application of a POA made under the law of one country in another jurisdiction, unless it is replicated there.

Health and Welfare POA

Here I need to split this discussion into two halves, covering A) where the parties are Citizens of different countries and B) where both parties are travelling but not in a county where the POA was executed.

A) Obviously if both parties were in the country where the POA was executed under local law there should be no problem, but a problem could arise if executed elsewhere. Would POA made under British law by a British Citizen be sufficient for a French Citizen to persuade a French Doctor/Hospital to accept their authority?

B) This situation of travelling in a different country from the one where the POA was made might make further difficulties, both legal and linguistic. I am envisaging a scenario of one partner having serious brain damage from a stroke or a road accident. Would an Italian Doctor/Hospital accept a POA drafted under English law and written in English?

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Have MHFun Members any opinion on this or had professional advice.

I know that I may have to eventually take Professional Legal advice but I wonder experience MHFun Members have had with dealing with either drafting of POAs internationally or of having to use them.

Geoff

 

[carolyn]

I found this bit of info but I expect you already know about it.https://www.monarchsolicitors.com/g...of-attorney-for-use-in-overseas-jurisdiction/

It’s obviously really complicated and in an emergency regarding health I’m sure doctors will always err on the side of caution and go all out to resucitate someone. They would rather be in the position of having to defend their actions in the case of a complaint when they’ve done too much rather than not enough.

The more diffeent languages you’ve got your LPA’s in the better before you go!

 

[mikebeaches]

Crikey, quite a complicated query I should have thought, though totally understandable in the circumstances.

I know a little about PoAs, but only concerning their application in the UK.

So not much help, unfortunately, other than taking the thread to the top of the list again...

 

[Conal]

So, in our case in practical terms, if we travelled to France/Spain over the winter and had an accident/injury or were diagnosed with a life changing medical condition that immediately affected our cognitive abilities, and our three children had power of attorney - medical and/or financial, would these be recognised?
A very good question, considering the probable ages of many funsters - we are 67 and 66.
I wonder if it would make any difference if we carried the documents translated into French and Spanish?

 

[carolyn]

So, in our case in practical terms, if we travelled to France/Spain over the winter and had an accident/injury or were diagnosed with a life changing medical condition that immediately affected our cognitive abilities, and our three children had power of attorney - medical and/or financial, would these be recognised?
A very good question, considering the probable ages of many funsters - we are 67 and 66.
I wonder if it would make any difference if we carried the documents translated into French and Spanish?

In the document I referenced it says they are only legal in the U.K. but can be made legal in other countries by your “attorneys” by getting them notarised. The process varies from country to country , whether they have to be in the language of the country you’re in, whether you have to get the FCDO involved. All sorts of things.
That’s why I said that in a life threatening emergency the doctors will be likely to go all out to preserve life to avoid any confusion that might come back on them. This is with my Doctor hat on. You have to do what is in the best interests of the patient. You have to also be aware that your actions need to be defensible to a body of your peers. The last thing you’re going to be worrying about is the person in another room waving sheets of paper in a foreign language. That’s for a later calmer discussion.

The OP has asked similar questions before and I don’t think he is going to get the answer he craves. There isn’t an easy one size fits all solution.

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[Podney]

A very interesting question,to which I don’t know the answer.

I very much doubt that a UK made POA will be effective outside the UK.

However the point made by Carolyn sounds plausible ie you get it “notarised “in another country. The fact that,as a motorhomer, you may be travelling through,say, six countries over a period of months,makes this impractical.

I think you should take advice from an expert in this field.

 

[nicholsong]

Thanks all for getting involved.

A special thanks for carolyn for her input as a doctor, and also for the link to Monarch Solicitors, which I had not read before.

To answer Carolyn's points about emergencies, I was not thinking about those circumstances, and as she quite rightly says leave it to the professionals to do what they deem to be in the best interests of the patient.

I was more thinking about a patient in a longer situation, either in a coma or on life-support with little chance of recovery. There might be various relatives consulted but with different opinions. In this case if one of them held a LPA, but made in another jurisdiction from the hospital then would the hospital recognise it?

The answer according to Carolyn's link seems to be quite complex. It seems not practical for MHomers to have a LPA notorised, translated and/or the process 'apostille' procedure for every country one might travel through.

I suppose that in practice, for a long-term incapacitation, it may be possible to ask the hospital to await the Attorney getting the LPA through whatever of the above procedures are necessary for the jurisdiction involved

It does seem to be a topic for which an International Treaty would be useful, similar to the Vienna Convention on vehicles and driving licences. However for the rare instances when it would be needed it may be difficult to get governments interested in negotiating its terms and ratifying it.

Lastly a question for Carolyn, but please feel free to decline to answer it in open forum. If you had a patient on life-support with little chance of recovery and you had two offspring saying keep it going, but one offspring, that was holding a LPA from another country, who wanted t turn off the life support, what would you do?

I know I have brought up a difficult subject, but is because I could see it being difficult that I brought it up.

Geoff

 

[carolyn]

Thanks all for getting involved.

A special thanks for carolyn for her input as a doctor, and also for the link to Monarch Solicitors, which I had not read before.

To answer Carolyn's points about emergencies, I was not thinking about those circumstances, and as she quite rightly says leave it to the professionals to do what they deem to be in the best interests of the patient.

I was more thinking about a patient in a longer situation, either in a coma or on life-support with little chance of recovery. There might be various relatives consulted but with different opinions. In this case if one of them held a LPA, but made in another jurisdiction from the hospital then would the hospital recognise it?

The answer according to Carolyn's link seems to be quite complex. It seems not practical for MHomers to have a LPA notorised, translated and/or the process 'apostille' procedure for every country one might travel through.

I suppose that in practice, for a long-term incapacitation, it may be possible to ask the hospital to await the Attorney getting the LPA through whatever of the above procedures are necessary for the jurisdiction involved

It does seem to be a topic for which an International Treaty would be useful, similar to the Vienna Convention on vehicles and driving licences. However for the rare instances when it would be needed it may be difficult to get governments interested in negotiating its terms and ratifying it.

Lastly a question for Carolyn, but please feel free to decline to answer it in open forum. If you had a patient on life-support with little chance of recovery and you had two offspring saying keep it going, but one offspring, that was holding a LPA from another country, who wanted t turn off the life support, what would you do?

I know I have brought up a difficult subject, but is because I could see it being difficult that I brought it up.

Geoff

Nick and I had our LPAs drawn up by a solicitor and have had our a clause put in. It’s an “expression of our wishes”, basically a living will, ie no intervention if we are physically or mentally incapacitated. It’s very detailed. You can only do so much though. It’s to try and make it as easy as possible for our 3 children, 2 are pragmatic and 1 more emotional. The eldest , one of the pragmatic ones sometimes serves overseas in places difficult to return from so we have tried to make it as clear as possible!
To answer your question, I’d keep the patient going , look after them to the best of my ability, keep them as comfortable as possible until the hospital legal team had sorted everything out. That’s what they get paid huge amounts of money to do. Get welfare involved to try to get some sort of resolution for the poor family. They are grieving.

 

[nicholsong]

Nick and I had our LPAs drawn up by a solicitor and have had our a clause put in. It’s an “expression of our wishes”, basically a living will, ie no intervention if we are physically or mentally incapacitated. It’s very detailed. You can only do so much though. It’s to try and make it as easy as possible for our 3 children, 2 are pragmatic and 1 more emotional. The eldest , one of the pragmatic ones sometimes serves overseas in places difficult to return from so we have tried to make it as clear as possible!
To answer your question, I’d keep the patient going , look after them to the best of my ability, keep them as comfortable as possible until the hospital legal team had sorted everything out. That’s what they get paid huge amounts of money to do. Get welfare involved to try to get some sort of resolution for the poor family. They are grieving.

Exactly the answer I was expecting and hoped for.

Bless you Carolyn as a caring and careful doctor.

Geoff