Will my lasting power of attorney work in France?

How does power of attorney work in France? In this article, Charlotte Macdonald and Bryony Anning of Stone King LLP’s International and Cross-Border Team answer your FAQs about lasting powers of attorney and their French counterparts, mandats de protection future.

WHAT IS A LASTING POWER OF ATTORNEY?

A lasting power of attorney (LPA) is an English legal document which permits another person (your attorney) to make decisions about your property and/or wellbeing on your behalf, should you lose mental capacity.

There are two types of LPAs: the property and financial affairs LPA is used for paying bills, dealing with property and investments and operating bank accounts. The health and welfare LPA is used for decisions relating to medical treatment, diet and where you live.

You can prepare your LPAs yourself, or you may wish to instruct a solicitor to help you. It is a good idea to obtain professional advice if you own property overseas.

LPAs are only effective once they have been registered with the Office of the Public Guardian – you should register your LPAs as soon you have completed them.

WHO IS INVOLVED IN MY LPA?

1. Donor

This is you – to make an LPA you must be over 18 and have mental capacity.

2. Attorney

Your attorney should be someone you trust – this is usually a spouse, family member or good friend.

It is possible to nominate multiple attorneys. You can choose different attorneys to deal with your property and financial affairs and your health and welfare. Be mindful that too many attorneys might make it hard to reach decisions together.

It is a good idea to appoint replacement attorneys in case your original attorneys cannot act.

3. Certificate provider

Your LPA must include a certificate (a statement) confirming that no one is forcing you to make the LPA and you understand what you are doing. This is provided either by someone who has known you personally for two years, or by a professional such as a doctor or solicitor. A professional may charge a fee for providing this certificate.

4. Witnesses

A witness is required to watch you sign your LPA. Your witness must be someone other than your appointed attorneys or replacement attorneys.

CAN I MAKE AN LPA AFTER I HAVE LOST MENTAL CAPACITY?

No – you must have mental capacity at the time of making your LPA.

Once someone loses mental capacity a much more complicated and expensive court application is required to appoint someone to act on the person’s behalf. It is therefore a good idea to put in place LPAs early.

If there is any doubt over your capacity or you think that your LPA might be contested in the future, you should obtain a report from your doctor confirming your capacity. You can also request that your doctor signs your LPA as your certificate provider. Your doctor may charge a fee for this service.

WHAT IS A MANDAT DE PROTECTION FUTURE?

It is a good idea to put a mandat de protection future (MPF) in place if you live or own property in France.

An MPF is a French legal document which works similarly to the English LPA – permitting another person(s) to make decisions about your property and/or wellbeing, on your behalf, should you lose mental capacity.

It is possible to prepare an MPF yourself. However, there is a very real risk that a French bank (or other body) requiring the document will not accept your homemade MPF, which could result in lengthy and costly legal proceedings. We therefore recommend instructing a French notaire (lawyer and public officer) to prepare your MPF by way of a formal deed. A French notaire will want to meet you in person to prepare an MPF for you, so if you do not speak French it is a good idea to find an English speaking notaire.

You will be able to find a local notaire online here.

WHO IS INVOLVED IN MY MPF?

1. Mandant

This is you – to make an MPF, you must be over 18 and cannot be subject to a French guardianship order, called a tutelle.

2. Mandataire

Your mandataire can be someone you know and trust. Alternatively, the French courts can provide a list of qualified mandataires, called the mandataires judiciaires à la protection des majeurs.

3. Notaire

There are many advantages to instructing a notaire to prepare your MPF, but it is not mandatory. The mandataire under a notarial deed may be granted extended powers, such as selling property.

WILL MY LPA WORK IN FRANCE AND WILL MY MPF WORK IN ENGLAND?

English LPAs are valid in France under the Hague Convention on the International Protection of Adults. However, it is entirely at the discretion of the bank (or other body) requiring the LPA as to whether they will accept it or not. We have found that many people struggle to convince French banks (and in some cases their notaire) to accept an English LPA.

Under English law, a translated and legalised French MPF will be valid provided that it passes a two-part test. Firstly, it must be valid in France, and secondly, you must be habitually resident in France. Proving your French MPF in the UK can be an onerous task and your attorneys may be in for a long battle, including having to go to court and having to provide a translation and written explanation of the law in an attempt to get the MPF recognised.

Our advice is that the best way to guarantee your attorney has full authority under the laws of each jurisdiction is to put in place LPAs in England & Wales and an MPF in France.

WILL MY LPA AND MPF WORK AFTER I DIE?

No – both the LPA and MPF end when the you die. After you die, your attorneys should send your LPAs to the Office of the Public Guardian, together with a death certificate.

DO I NEED LPAS AND AN MPF IF I ALREADY HAVE A WILL IN PLACE?

Yes – your LPAs and MPF will ensure that your affairs are properly managed during your lifetime, whilst your will deals with your affairs following your death.

Putting in place these legal documents will make things easier for you, and your friends and family in the event that you lose capacity.

EXAMPLE

Richard and Rebecca are a British couple who have retired to France. Richard has recently been diagnosed with the early stages of Alzheimer’s disease. He is currently feeling in good health but the couple want to prepare themselves for the future as they know that the disease will worsen as time goes on. Richard and Rebecca have come to us for advice on how to put in place powers of attorney which will be effective in both the UK and France.

Even if you are in perfect health (as Rebecca is), it is good practice to plan ahead. We suggest that both Richard and Rebecca should put in place the health and welfare and property and financial affairs LPAs in the UK, together with an MPF in France. We prepare Richard and Rebecca’s UK LPAs and we put them in touch with a notaire, who can prepare their French MPFs. Having these documents in place will ensure that the couple’s interests are looked after and that their UK and French properties can be dealt with appropriately if/when their health deteriorates.

For more information please contact the International and Cross-border Team at Stone King LLP –Charlotte Macdonald, Dan Harris, Raquel Ugalde and Emma Seaton, either by calling +44(0)1225 337599 or by emailing [email protected].