What is a power of attorney?
Powers of attorney fall into the following categories:
general powers of attorney (POA) - this provides legal permission to someone else (known as the 'attorney') to make decisions and sign documents on someone else's behalf. For more information, read General power of attorney
lasting powers of attorney (LPA) - this allows someone to appoint an attorney to deal with their property and financial affairs and/or make health and welfare decisions on their behalf if they lose their mental capacity. For more information, read Lasting power of attorney
Why would an overseas power of attorney be required?
People who live in one country and whose assets are all located in the same country will generally only need to appoint a local attorney (eg if they decide to travel abroad and need someone to look after their affairs at home, or want to create an LPA).
But those who have assets abroad may need to appoint an attorney who is familiar with the jurisdiction (eg the laws and official procedures of that country etc). In this case, unless they are willing to travel abroad to manage their affairs each time, it will generally be best to grant a power of attorney to an overseas representative. Some of the situations in which an overseas power of attorney may be useful include:
overseas property transactions
cross border litigation matters
overseas inheritance cases
foreign corporate transactions
People who reside in multiple jurisdictions throughout the year may also need to consider appointing a separate attorney for each location.
Should you appoint an attorney who resides in a different jurisdiction?
Appointing an attorney in the secondary jurisdiction will generally be the most straightforward and cheapest way of ensuring that an attorney is able to protect your interests. Professional attorneys and international lawyers may be willing to carry out work in multiple locations, but this can be very expensive. Furthermore, if a UK power of attorney is to be used overseas, it may be necessary to translate this and have it approved by the Foreign and Commonwealth Office (FCO) to validate it in the foreign jurisdiction.
How can an overseas power of attorney be created?
Overseas powers of attorney can be created in either of two ways:
overseas attorney - if the power of attorney is created in the foreign jurisdiction, it can be drawn up according to local laws. However, it should be signed in the presence of a relevant notary
UK attorney - powers of attorneys created in the UK need to be professionally translated, certified by a notary and validated by the FCO
International powers of attorney in Scotland
In Scotland, foreign powers of attorney can usually be used where an organisation (for example, a bank) accepts the power of attorney’s authority.
Where the foreign powers of attorney’s authority is not accepted, then the organisation may require the power of attorney to be endorsed in Scotland. However, as the laws of Scotland suggest that a foreign power of attorney is automatically valid in Scotland, there is no formal endorsement process in place.
To address this the Office of the Public Guardian (Scotland) has an 'advisory certificate' on their website, which can be downloaded, printed, and presented with the foreign power of attorney.