Powers of Attorney: Cross-border considerations
Powers of attorney (PoA) have existed for centuries, as a useful mechanism of delegating powers to others (your ‘attorneys’) when you are unable to do things yourself. They have developed into a key tool for estate planning. However, because different types of PoAs are required in different circumstances, it is vital to understand which PoAs will provide the cover you need - and in the context of cross-border connections, specialist advice is needed.
What are PoAs for?
Historically, PoAs were granted solely to professionals to deal with specific financial matters, however over the years they have expanded significantly to allow the involvement of family and friends in both financial and healthcare matters. PoAs may now be limited to specific topics or transactions, limited for a period of time or designed to continue indefinitely (even if you become unable to make your own decisions through a loss of physical or mental incapacity).
Comparing different types of PoAs: UK and Switzerland
Although the underlying principles are the same, different types of PoAs have different functions, and PoAs which work in one country may operate differently, or not at all, in another country. For people who have homes or other assets across more than one jurisdiction, this is an important nuance to understand. The UK and Switzerland are prime examples.
In the UK, there are three key types of PoA:
UK: Ordinary Power of Attorney
These are used to allow you to appoint someone to act on your behalf for a specific financial matter in the UK (such as signing a property transaction form whilst you are on holiday) or more generally (for example, permission to speak to your bank on your behalf).
You must have capacity in order to put these in place and for them to be used – they essentially allow someone to step into your shoes and deal with financial matters under your direction. However, if you cease to have capacity, then your attorney’s authority to act for you immediately ceases.
Ordinary Powers of Attorney can be put in place with relatively few formalities, and are effective on signing.
UK: Lasting Power of Attorney (LPA)
These are longer-term solutions to the Ordinary Power of Attorney, and are different in two crucial aspects:
- there are two types of LPA: one to deal with finances and the other to deal with healthcare; and
- they can be effective even if you lose mental or physical capacity to organise your own affairs.
When making a financial LPA, you can choose if your attorney(s) should have the power to act as soon as the LPA has been registered (so they can act for you, even though you could still act for yourself) or if the LPA should come into effect only if you no longer have capacity.
The healthcare LPA, in contrast, can only ever be used when you do not have capacity.
The process to put LPAs in place is rather cumbersome. To do so, you must complete specific (and lengthy) forms. These need to be signed by you, your attorney(s), back-up attorney(s) (if any) and a certificate provider (whose role is to confirm you understand the documents) in front of witnesses in a prescribed manner. LPAs then need to be registered with the Office of the Public Guardian (with the associated modest fee) in order to be valid. It usually takes six to eight weeks for the registration process to complete.
UK: Enduring Powers of Attorney (EPA)
These were the pre-cursers to LPAs, as your attorneys continued to be able to make financial decisions even if you lost capacity. LPAs have now replaced EPAs, and since October 2007, new EPAs can no longer be made.
EPAs were much shorter documents than LPAs and were valid immediately. However, your attorneys have to register the EPA at the Office of the Public Guardian if you lose capacity, for it to continue to be valid.
In Switzerland, there are also three key types of PoA, but they do not exactly mirror the UK PoAs in terms of the spheres of operation:
Switzerland: Two types of PoAs which may cover financial matters (Standard PoAs and Advance Care Directives)
These can be put in place to deal with your assets and financial affairs, both for specific matters and more generally. There are two types of Swiss PoAs which can cover financial matters:
- the Standard PoA, which are valid only whilst you have capacity. This is similar in function to the English Ordinary PoA; and
- the Advance Care Directive, which combines some of the functions of both the English Financial LPA and Healthcare LPA, as it allows you to appoint an attorney who can act for you when you no longer have capacity to make financial decisions yourself, and it also enables you to nominate who would make certain personal care decisions. However, healthcare decisions regarding significant medical procedures are generally covered by a Patient Decree, as described below.
A key advantage of the Swiss PoAs is that they can be handwritten with no need for witnesses. Alternatively, they can be created and signed before a public notary.
You do not need to register either type of PoA in Switzerland, and so they can be kept at home or somewhere safe.
If you are a Swiss resident, you do however have the option of asking the civil register office to record the existence and location of storage of a Standard PoA for a small administration fee. If incapacity occurs, your attorney will need to provide a copy of the Advance Care Directive to the Swiss Adult Protection authorities, who will verify that all requirements are met and issue your attorney with a formal document stating his or her powers.
Switzerland: Healthcare PoA for medical procedures (known as a Patient Decree)
These can be put in place to appoint attorneys to deal with decisions regarding medical procedures matters once you no longer have the capacity to do so yourself. These are more limited than Advance Care Directives, as they apply only to specific and significant medical procedures.
In contrast to the Swiss financial PoAs, they are not handwritten but rather are typically pre-prepared template forms offered by the Swiss authorities that can be completed and signed. You can specify (by way of a tick-box exercise) certain directions for specific circumstances.
If you are in the UK and your assets and financial affairs are in the UK, then it is fairly clear how to organise your affairs. Likewise, if you are in Switzerland and your assets and financial affairs are in Switzerland. But what happens when you are resident in the UK and have assets in Switzerland, or the other way round?
The rules governing the enforceability of PoAs in foreign countries are set out in the Hague Convention on the Protection of Adults 2000. Switzerland is a signatory, but it has only been ratified in Scotland for the UK. Therefore, the PoAs of the other jurisdiction are not automatically recognised in England.
With this in mind, can a Swiss resident still make a UK PoA? And a UK resident a Swiss PoA? The short answer is yes, but their effectiveness is usually limited. Non-UK residents are able to create all forms of UK PoAs, however they will only be effective in the manner intended inside the UK. Likewise, non-Swiss residents can create Swiss PoAs to be effective within Switzerland. However, in relation to the Swiss Patient Decree specifically, where you are not resident in Switzerland and already have a healthcare PoA in place in your country of residence, it is not usually recommended to also create a Swiss Patient Decree. This is because foreign healthcare PoAs are likely to be valid in Switzerland (see below) and therefore multiple valid documents purporting to deal with the same issues may lead to unnecessary uncertainty and an attorney’s subsequent inability to act.
Is there any way of getting an English PoA formally recognised in Switzerland, and vice versa? For an English financial PoA to be recognised in Switzerland, a court application will likely be needed for a ruling on enforceability. Some institutions may accept foreign financial PoAs without court intervention, but they will more often than not need to be notarised, apostilled and formally translated at a minimum. For healthcare PoAs the general practice is less stringent – as the English healthcare LPA is similar in form to the Swiss Patient Decree, it is likely that it will be recognised as valid by medical professionals in Switzerland without court intervention.
With regards to the recognition of Swiss PoAs in the UK – an application for confirmation by the attorneys to the UK’s Court of Protection is likely to be needed, accompanied with certified and translated documents. In situations where the PoA needs to be used urgently, the time, delay, hassle and expense of either route will likely be prohibitive.
Our advice, therefore, is always to take the time whilst you have capacity to create separate financial PoAs in the jurisdiction in which you reside as well as anywhere else you hold assets for ease of administration if and when they are needed. With regards to healthcare PoAs, the importance of putting these in place in the jurisdiction in which you reside whilst you have capacity cannot be underestimated. It will not likely be appropriate to put a ‘secondary’ healthcare PoA in place in another jurisdiction, as the uncertainty of multiple directives in this regard may outweigh any benefit they bring.
What if no PoAs are in place?
In the UK, if you were to lose capacity to take health and welfare decisions, then in the absence of a healthcare LPA other people would need to take these decisions on your behalf such as doctors, medical staff or Social Services.
Although you would be in good care, it is unlikely that they will know your wishes and preferences as an attorney would.
In terms of finances, in the absence of a PoA which is effective on incapacity your assets would be effectively ‘frozen’ and no one would have immediate authority to deal with them. This would entail a costly and time-consuming application by your loved ones to the Court of Protection to appoint a deputy to make decisions on your behalf. Deputies, however, have far less powers than a properly appointed attorney – for example, they would need to report to the Court each year, and so in complex or international families it may not be clear which family member should be appointed (adult children, second spouse, someone else resident in the UK?). In circumstances such as these, a professional is more likely to be appointed who again is unlikely to be familiar with you and your circumstances and who would charge for their services.
The process in Switzerland is similar in some regards. If there are no financial PoAs in place in Switzerland, a spouse or registered partner who cohabits with you (or provides you with regular support) has a statutory right to act as your representative for day-to-day management of your affairs. For matters that go beyond daily management (such as a decision to sell your property, for example), your representative will need to obtain consent to act from the Swiss Adult Protection authority. If you do not have a cohabiting spouse or registered partner, the authorities can instead appoint a deputy to act on your behalf. Again, this may be someone who may be unfamiliar with you and your circumstances, and they would charge for their services.
For Swiss Healthcare PoAs in contrast, there is a pre-determined order of people who can act on your behalf in Switzerland, if you do not have a Swiss Patient Decree in place. The list includes spouses and registered partners, cohabitees, children, parents and siblings, but they will only be able to act if the court does not appoint someone in priority. Clearly, it is better to make your own active choice regarding these highly personal matters and ensure your next of kin know your wishes.
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