You may have prepared and signed a Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (EPA) in the UK appointing one or more people to make decisions or help you make decisions concerning your finances and wellbeing, in the event that you lose capacity. But will these documents be recognised in Italy?
A UK LPA or EPA is currently not accepted as having legal value in Italy. This means that Italian banks will refuse to deal with anyone named in the document when presented, even if it has been translated and legalised. It may be possible to enforce the LPA through the Italian Courts but this is a lengthy and expensive process that is best avoided.
It’s important, therefore, to make sure that your finances and wellbeing in Italy are adequately covered, should you lose mental capacity in the future.
You can appoint an attorney to deal with your day to day financial affairs by signing a general power of attorney before a Notary Public in Italy. This document authorises one or two of your chosen individuals to access your accounts and pay bills on your behalf; the powers can be as wide or as specific as you wish. It will be immediately recognised by all Italian financial institutions and you will retain full access to the accounts too.
Any actions that go beyond the day to day activities, such as selling shares or a property, will require a specific power of attorney.
You must have full mental capacity and understand the document you are executing. The Notary may ask to see a doctor’s report confirming this and may refuse to witness the document if he thinks that you are lacking the relevant mental capacity.
So, what happens if a person has already lost their mental capacity and therefore is not in a position to sign a General POA?
In this case, a Court Order naming a guardian will be necessary. Various orders can be made in the Italian Courts, depending on the severity of the case and how much assistance the individual will need. The most stringent measures are contained in an ”Interdizione” Order, where the individual is deemed to be completely incapable of looking after his or her interests and therefore requires full assistance.
The Court’s preferred and softer approach is that of an ‘Amministrazione di Sostegno’. This appoints a guardian (called an ‘Amministratore di Sostegno’, shortened here to ‘AdS’) to provide financial assistance and to help make decisions, but also allows the individual to enjoy a relative amount of independence and access to their accounts.
Anyone, such as a relative, a family friend, or even the person concerned, can lodge a request to the Court to appoint an AdS. The request lodged must name a person who they suggest can act as the AdS – this again can be a family member, a close friend, a social services worker or any other professional, the latter being able to charge reasonable fees. The individual concerned can also choose their AdS and will be heard by the Judge at the first hearing, which often will be held at the appointee’s home.
It’s at the discretion of the Judge to determine how stringent the terms of the AdS are, and how much control the person will retain over their finances, based on the specific situation. All powers invested in the AdS must be detailed in the Court Order. The length of the AdS must also be specified within this Order, as it can be a temporary order or last for an indefinite period of time.
The AdS will be responsible for the administration of the individual’s day to day finances, such as the payment of bills, medical costs, home help and care. However, it’s not authorised to carry out any significant matters, such as selling a property, without the express authorisation of the Judge.
The AdS will have to present to the Judge an annual report outlining what has been done in the previous year, identifying all expenses and costs paid and the amounts due as professional fees to the AdS (these must be approved by the Court before they can be paid).
The Judge can also order that the AdS can make healthcare decisions on behalf of the individual who doesn’t have capacity to do so.
A person can identify someone to make these decisions for them before they lose, or begin to lose, mental capacity.
Since 2018, anyone in Italy can make a “living will”. This can take the form of a Notarial Deed, a written and signed statement which is witnessed by a Notary, or a form which is lodged with their local Comune or hospital. This document will outline the choices that can be made on your behalf, such as life sustaining treatment, and who is to make those decisions.
If you have assets in Italy and would like to appoint someone to deal with your financial assets or make healthcare decisions on your behalf, should you lose mental capacity in the future, or if you are concerned about a loved one, who either lives in Italy or has assets in that country, please do contact us.
