Lasting Powers of Attorney in a Post-Brexit World

Sam is a British citizen from Cardiff who moved to France in 2015. He lives close to Perpignan, but still has a flat and bank accounts in Wales.

Sam intends to remain in France for at least another 10 years, so has applied for and now received his carte de séjour.

Sam is due to have major surgery early next year and wants to know if he can still make a power of attorney to cover his assets back in the UK, given that Brexit has happened and that he is French resident.

Sam is a British citizen from Cardiff who moved to France in 2015. He lives close to Perpignan, but still has a flat and bank accounts in Wales.

Sam intends to remain in France for at least another 10 years, so has applied for and now received his carte de séjour.

Sam is due to have major surgery early next year and wants to know if he can still make a power of attorney to cover his assets back in the UK, given that Brexit has happened and that he is French resident.

A power of attorney is a document in which you authorise another person (your attorney) to do something in your place. For example, you can authorise your attorney to operate your bank accounts and buy or sell property for you.

It is important to note that under English and Welsh law a general power of attorney only works when you have mental capacity. If you no longer have the capacity to make decisions your power of attorney ceases to work.

Therefore there is an alternative document available called a lasting power of attorney (‘LPA’). LPAs are designed to work in the event that you lose mental capacity.

There are two types:

• ‘Health and Welfare’ – in which you can appoint an attorney/s to make health and welfare decisions for you, such as medications, operations and where you live; and
• ‘Property and Finance’ – in which you can appoint an attorney/s to make decisions relating to your properties, such as buying, renting, selling, and financial decisions such as banking and investing.

The Health and Welfare LPA can only be used when you have lost mental capacity but you can choose for the Property and Finance LPA to be used by your attorney/s even when you have mental capacity if you prefer.

They are powerful documents so care must be given when choosing your attorney/s but they can be extremely helpful as they help to ensure that you can be looked after by the people that you nominate.

It is not necessary to be resident in the UK in order to make LPAs. It is perfectly possible for a French resident to make LPAs.

This was the case before Brexit and it remains the same now that the Brexit has happened.

As Sam expects his operation to take place next year it would be sensible for him to make his LPAs now, as in order for the LPAs to be usable they must be registered with the ‘Office of the Public Guardian’ (‘OPG’). This is a governmental body which overseas the registration and use of LPAs in England and Wales. The OPG are currently taking approximately 20 weeks to register new LPAs.

If Sam, loses mental capacity his attorney/s will be able to manage his affairs back in Wales. If Sam needs additional money in France they will be able to access his UK bank accounts and arrange this for him. They would even be able to sell or rent out his flat in Cardiff if it was in Sam’s best interests for them to do this.

Please note that if Sam makes English and Welsh LPAs, which he should given he has property in Wales, it will likely be very difficult to use these in France. LPAs are primarily for use in England and Wales, and although it can be possible to use them in other countries this is not likely to be straightforward.

Therefore if Sam also wants to make sure that someone can deal with his property in France if he is no longer able to, he should speak to a notaire about a putting in place a mandat de protection future.