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French assets and loss of capacity
The loss of capacity of a loved one is always a difficult experience for a family. Things can become even more stressful if they own assets (bank accounts, a house) in a foreign jurisdiction, such as France, and the family comes under pressure to realise those assets to fund care home fees.
The jurisdiction of England and Wales is not (yet) party to the Hague Convention on the International Protection of Adults. This means that there is no automatic acceptance in France of an English Lasting Power of Attorney (LPA) or Deputyship Order. Consequently, difficulties can arise when the Attorney or the Deputy attempts to deal with the French assets, as their authority to do so will be questioned in France. For example, they will find it difficult to sell a French property on behalf of the Donor or close their French bank account and have the funds transferred back to the UK.
French Notaires are lawyers and understand the underlying concepts of such documents and are often happy to proceed on the basis of an LPA or a Deputyship Order. However, as their legal expertise does not cover English law, they will require the relevant legal documents, such as an affidavit of English law, to reassure them that everything is in good order and that they will not be found liable for acting on the orders of the Attorney or Deputy, or have the completed transaction overturned at a later date. This would cover transactions where the Attorney/Deputy wishes to sell the French property, and/or needs to accept its inheritance on behalf of the Donor before it can be sold.
French banks are more difficult to deal with and several hoops must be jumped through before the accounts can be closed and the funds released. Each bank has its own requirements and it’s important to liaise with them beforehand to ascertain what’s needed, as preparing the relevant documents is likely to be costly.
As a general rule and at the very least, a bank or a Notaire is likely to request:
- a “sworn” translation of the Deputyship Order or LPA prepared by an expert translator registered as such with a French Court of Appeal
- a specific Court of Protection Order confirming the authority of the Attorney and/or Deputy to deal with the French assets
- a sworn translation of such Court Order,
- apostille stamps verifying the validity of the documents listed above.
Our French Law team has had recent success in dealing both with the sale of a French property on behalf of an Attorney and closing French bank accounts on behalf of an Attorney. We would be happy to advise and guide you through this complex process and deal on behalf of the Attorney/Deputy with both Notaire and French bank.
If required, we can work hand in hand with our Court of Protection team to apply for the relevant Orders with the Court of Protection, ensuring that they include appropriate wording as regards the French assets. We liaise closely with experienced cross-border Notaires who are familiar with the English law system, making the process smoother and easier. Our team can also work with an already appointed local Notaire and reassure them as regards accepting the authority of an Attorney or Deputy. Where there is pressure in England from the care home representatives to realise the French assets and pay their fees, we are happy to assist the family by explaining the timescales involved and providing regular updates.
If you currently act as a Deputy or Attorney for a donor with assets located in France, please do not hesitate to contact us to discuss your specific situation and requirements.