Many people own property, bank accounts or investments abroad, or have family living in other countries. If you became unable to manage your affairs, who could act for you and would their authority be recognised? A power of attorney can help protect you and your family, but international assets may require additional planning.
What is a power of attorney?
A power of attorney is a legal document authorising another person to make decisions and act on your behalf in financial, property, welfare or healthcare matters.
A well drafted document can continue, or begin, if you lose capacity through illness, accident or age. Without one, relatives may need a lengthy and costly Court process before they can help.
Scotland uses Continuing and Welfare powers of attorney while England and Wales use lasting powers of attorney. Each is registered with its respective Office of the Public Guardian and operates under a distinct legal system.
Why it matters in a cross-border context
A power of attorney is useful only where it is recognised. A document accepted in Scotland may be rejected by a foreign bank, notary, healthcare professional or lawyer. Each country sets its own rules on who may act, the required form and acceptable evidence. Foreign authorities may be particularly cautious where land, property or substantial funds are involved. Families may therefore discover during an emergency that their document cannot be used where it is needed.
Will a power of attorney granted in one country be recognised in another?
Whether a power of attorney will be recognised typically turns on a few key factors.
- Jurisdiction - Every country recognises its own particular form of power of attorney, and each sets its own rules for what it will accept from elsewhere. There is no guarantee a Scottish power of attorney would allow you to manage your bank accounts in Spain.
- Type of asset involved, whether the power of attorney is being used to sell property, operate bank accounts, or manage investments could impact your attorney’s ability to deal with your finances.
- Authentication - Even if another country were to accept the power of attorney it may require a certified translation, legalisation, or apostille before the document can be relied upon.
Even in cases where recognition is possible, the authentication process itself can introduce significant delay.
The risks of relying on a single-jurisdiction power of attorney
Relying on one document for assets in several countries can create:
• Rejection by a foreign bank or healthcare professional.
• Delay and expense from translation and legalisation.
• Gaps in authority where some matters are not covered.
• Court proceedings abroad to appoint someone to act.
• Conflicting documents where arrangements are not coordinated.
How powers of attorney differ across jurisdictions
Legal requirements vary considerably between jurisdictions. Scotland and England and Wales have separate regimes, while civil-law countries such as France and Spain often require notarial formalities. These differences commonly cause cross border difficulties.
A further distinction can be significant when assets or family are located abroad as a Scottish Continuing and Welfare power of attorney can be recognised in other signatory states under the Hague Convention. Interestingly, however, an English or Welsh lasting power of attorney does not currently benefit from this route, because the Convention has not been brought into force in England and Wales.
Practical considerations if you have international connections
Review your arrangements if you have:
- Property abroad, overseas accounts or investments. Each provider will have its own requirements for how accounts can be managed, and some institutions may require certain documents to carry an original wet ink signature. An original wet ink signature is also often required when dealing with property.
- Family abroad - If those you wish to appoint as your attorney live in another country, consider whether they can act practically from a distance. This can be particularly important for time sensitive medical decisions, where your attorney may be in a different time zone.
- Overseas business interests - Specific authority may be needed to deal with companies, shares, or partnerships.
The importance of planning ahead
A power of attorney must generally be made while you have capacity. Cross border documents may also need translation, notarisation, an apostille and coordination between legal systems, which cannot easily be arranged during an emergency.
The good news is that, with proper planning, these problems are avoidable. In many cases the right approach is to put in place a robust Scottish power of attorney and to arrange complementary, locally valid documents in the countries where you hold assets carefully coordinated so they work together rather than against each other. Getting this right requires a joined-up view of your whole international position, ideally with your UK solicitor working alongside trusted lawyers in the relevant countries.
How Thorntons can help
At Thorntons, our Private Client team advises individuals and families whose lives and assets cross international borders. We can review your existing arrangements, prepare powers of attorney that meet the requirements of Scotland, and work with our network of overseas contacts to ensure your affairs are protected wherever your interests lie.
If you own property abroad, hold overseas accounts, or have family in another country, we would strongly encourage you to take advice before a problem arises, not after.
