Capacity
35. What happens when a person loses capacity? Does the UK recognise powers of attorney (or their equivalent) made under the law of other jurisdictions?
When a person loses capacity, their appointed attorney (under an enduring power of attorney (EPA) or, since 1 October 2007, a lasting power of attorney (LPA)) manages their financial affairs.
An EPA or LPA is valid only if the person appointing the attorney had full capacity when it was signed. In the absence of a valid EPA or LPA, the court can appoint a deputy to manage the property and affairs of the incapacitated person.
England and Wales recognises foreign equivalents to LPAs (protective measures) if the incapacitated person is habitually resident in that jurisdiction. Recognition can be refused if, for example:
- It was not essential at the time to take the protective measure and the person appointing the attorney was not given an opportunity to be heard.
- The measure is inconsistent with a protective measure under the law of England and Wales (for example, an LPA).
- Recognition would be contrary to public policy.
In relation to protective measures, the person appointing the attorney can specify that the law applicable to that power is the law of any country:
- Of which he is a national.
- In which he is habitually resident.
- In which he owns property.