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Overseas powers of attorney

People who live in one country but have interests (eg property, bank accounts) in another country, may need to arrange a power of attorney for their overseas representatives. This is especially true of people who are unable to travel in order to maintain their affairs. A Power of Attorney is governed by the law of the country where the actions of the Attorney will be performed. Normally, this is the place in which the property of the donor (ie person creating the power of attorney) is located.
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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 further 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 further information, read Lasting power of attorney.

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.

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.

Overseas powers of attorney can be created in either of two ways:

  1. 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.
  2. UK attorney - powers of attorneys created in the UK need to be professionally translated, certified by a notary and validated by the FCO.

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.

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