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Will a UK Lasting Power of Attorney (“LPA”) be recognised in France?
Sophie Voelcker
As so many families that we advise now live across several countries, and particularly in France, we regularly get asked whether Lasting Powers of Attorney made in the UK and registered with the Office of the Public Guardian can be recognised in France.
The short answer is that they can be recognised under the Hague Convention on the International Protection of Adults but that the process to do so is likely to be burdensome in terms of administrative time and costs and might ultimately still fail. In practice, attorneys will encounter issues with French banks and other institutions, who will be unfamiliar with the arrangements under a UK LPA and who might be unwilling to recognise it. Differences in legal terminology and administrative procedures will also complicate matters.
It is therefore generally advisable to consult a French lawyer and consider options available under French law if you can foresee the need for someone to act on your behalf in France in the future.
We advise those clients for whom this is an important consideration to have a contingency plan in place and we can work jointly with French legal professionals to set this up.
Setting up a “mandat de protection future”
The “mandat de protection future” is the French legal mechanism that is closest to a UK LPA.
Two types
Like for an LPA, there are two types, one covering the personal life and wellbeing of a person (“assistance dans la vie personnelle”), the other their Property and affairs (“patrimoine”).
Unlike in the UK, you can also set up an MDP for both types.
Who can give power under an MPF
The person giving the power to one or more attorneys must normally be an adult, and must have full mental capacity at the time of designating one or more persons as his attorneys (agents).
Two types (again)
The MPF is a contract and can be set up as a full notarial warrant, or take the form of a document that is simply countersigned by a lawyer. The latter will limit the power to carrying out simpler administrative acts, like renewing a lease. The full notarial warrant will give the agent more significant powers, including the power to sell or dispose of property or assets.
There are also a number of other legal mechanisms that can be considered depending on the circumstances, these will be similar to deputyship in the UK.
It is important to keep in mind that setting up an MPF requires the person who gives the power to have full mental capacity.
It is also worth noting that there are French documents which allow for someone to control your affairs or wishes in a more informal manner.
For health purposes, for example, you can officially designate a trusted person (“personne de confiance”), who can help you with major health decisions and formalities and who will be consulted by doctors and hospitals about your wishes in the case of your being incapacitated by serious illness. It is worth noting, that person nominated has a consultation role only, and that the ultimate decision rests with the doctor(s).
Process of getting a UK LPA recognised
Apostille
There might be situations where there is no other option than to get a UK LPA legalised to be used abroad. For this you are likely to need an apostille, which is a certificate issued by the Legalisation Office in the Foreign Office. The apostille will be affixed to the original LPA certifying that it is recognised and enforceable in countries that are party to the Hague Convention 1961.
More information on apostilles can be found here.
Translations and certifications
You will also need to get the LPA and apostille professionally translated and the translation certified in the UK.
You are then likely to also need to get the translated and apostilled LPA certified by a French lawyer.
Court order
However, even after all these steps, you might still have to go to Court in France, so that the French Court orders for the UK LPA to be accepted as the implementation of a UK LPA in France is subject to specific formalities.
As part of this process, the application will have to provide the Court’s administration service with a medical certificate, which is less than two months old, stating that the person’s faculties have been impaired. The certificate must be issued by a doctor registered on the public prosecutor’s list.
It is also worth noting that the French Court system is not fast.
After all these steps, you might still encounter issues when actually trying to use the LPA with a French financial institution or other organisations if there are questions about processes or terminology.
We would therefore generally recommend to get advice from a French lawyer if you foresee that you will need to use an LPA in France as well as the UK. We regularly work with a trusted network of French lawyers and can therefore provide cross-jurisdictional advice.
further information
Please do not hesitate to get in touch, we would be delighted to assist you.
If you have any questions regarding this blog, please contact our Anglo-French team.
about the authors
Sophie a partner in the Private Client team. Sophie focuses on advice to UK resident and/or domiciled clients regarding wealth structuring, estate planning and trusts, with a particular interest in any cross-border taxation and succession issues for clients with international assets or who have relocated abroad. Sophie also has experience providing such advice in the context of matrimonial disputes and pre-nuptial agreements.
Stephanie is a Senior Associate in the Private Client team. She joined Kingsley Napley in 2016 and advises on a broad range of private client matters, with particular expertise in succession planning with a cross-border element. Stephanie’s clients are varied and include high net worth individuals, multi-generational families, entrepreneurs and trustees.
Milena is an Associate in the Private Client team with Wills and succession planning, probate matters and drafting Lasting Powers of Attorney. Milena is part of the Anglo-French Group and also speaks fluent German.
Helene is a partner at Ducamp-Monod & Associés, notaires in Paris, specialising in cross-border tax and estate planning. She had work experiences in UK and USA. She is trusted adviser to numerous, mostly foreign private clients, their families and businesses.
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