Lasting Power of Attorney

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Question

What is a Lasting Power of Attorney (LPA) and is an Austrian Lasting Power of Attorney recognised in the UK.

Answer

A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint someone else to assist you in making decisions or to make decisions on your behalf should you become incapable to do so (these people are known as attorneys).

In the UK there are two types:

  • healthSozialministerium The Austrian Ministry of Social Affairs, Health, Care and Consumer Protection is responsible for the following fields: The health care system Initiatives for people with disabilities Consumer protection Public health and medical issues Care and support The rights of consumers and the protection of their health Senior citizens’ policy Social policy Social insurance and welfare
  • property and financial affairs

It is normally done in two phases, where you prepare it (usually with a solicitor or can be done online) and then you register it. In the UK, it needs to be signed and witnessed and it is very IMPORTANT that you do this when you are of sound mind. Please note that it can take up to 20 weeks to register this.

It is important to note that the UK has 3 legal jurisdictions (England & Wales, Scotland, Northern Ireland) and the process in each might be slightly different.

Recognition of Austrian LPA in UK

In the research we have done, an Austrian Lasting Power of Attorney may be recognised in Scotland, but is NOT recognised in England and Wales or Northern Ireland.

For Scotland check the FAQ linked below and the question “Can a non-Scottish PoA be used in Scotland?” However, should an organisation decide not to recognise it, things may get difficult!

For England & Wales, the following response was provided by the Office of Public Guardian:

“As the power of attorney was drawn up overseas it may have no legal capacity to be used outside of that country, so may not be accepted for use in England and Wales.

In order to use a foreign power of attorney in England and Wales, you would need to seek permission from the Court of Protection, the approximate cost would be around £371.

It would still be up to third parties to decide if they will accept the document even with the Court’s permission, so I would suggest you speak to the organisation first to find out what would be required or seek legal advice.

The Court of Protection can be contacted on 0300 456 4600 or via email at courtofprotectionenquiries@justice.gov.uk.

If the donor still has mental capacity, then they could make a Lasting Power of Attorney (LPA) that would be recognised in England and Wales. The cost for this would be £82.00 per application. The OPG provides two types LPA, one to cover property and finance and another to cover health and welfare. Please see the following webpage for further details https://www.gov.uk/power-of-attorney”

For Northern Ireland the following response was provided:

“No in NI we have Enduring Power of Attorney and this only entitles Attorneys to deal with Financial affairs of the Donor and only valid in this jurisdiction – the High Court NI can issue a Court Order to enable an Attorney with an LPA in another jurisdiction to close an account in NI and mover assets to where the LPA is registered. More detail on this can be provided when applying.”

Note 1: In addition it does now need to be recognised that some UK financial institutions have issues with non-UK addresses, so even with a lasting power of attorney there may be issues.

Austrian Lasting Power of Attorney

An Austrian Lasting Power of Attorney needs to be drawn up before a Notary, lawyer or adult protection association and registered in the Austrian Central Register of Representatives (ÖZVV). 

It can be very detailed and very descriptive. Just like a UK one it is important to do this when you have the mental capacity to do so.

The lasting power of attorney will not take effect until it is confirmed by a physician by means of a medical certificate and registered in the ÖZVV.

Summary

Life can throw unexpected surprises at all of us and it is better to try and plan in advance. This is especially so if have elderly parents, are getting old yourself, are not married/registered partnership or have many siblings.

If you have financial and/or medical affairs in the UK and Austria you would be well advised to seek professional help in drafting and preparing a lasting power of attorney in both countries.

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