French Entrée Magazine – Lasting Power Of Attorney For French Resident British Nationals

Question: I am English but I live in France where I have bought a house. If I wish to appoint somebody to manage my property and affairs once I am no longer capable of doing so, should I have a lasting power of attorney or the French equivalent?

Answer

The Hague Convention on the International Protection of Adults of 13 January 2000, determines the laws relating to incapacity issues of adults.

If the adult is not mentally capable, then the law of their usual place of residence applies to matters concerning the incapable adult and their property. If they have recently changed their place of usual residence then the law of the country of the new residence is used. So, if the incapable adult’s usual place of residence is in France, then French law applies, and the French system of looking after incapable adults applies.

If the adult is mentally capable, they can choose which legal system applies as long as it is the law of:

a) their nationality,
b)the law of their immediately previous habitual residence or current habitual residence, or
c) the law of the place where the assets are situated.
For an English capable adult who has moved to France, they can therefore choose French law or English law, and so can sign a Lasting Power of Attorney or the French equivalent which is a Mandat de Protection Future

Question
If I sign a French Mandat de Protection Future (MPF), putting my adult child in charge of my assets, at what point do they take control over my assets?

Answer
Under Article 481 of French Civil Code, the MPF only becomes effective once it has been established that you are no longer capable of managing your own affairs. At that point the MPF must be registered with the competent authority in order to take effect. So, your child will not have control over your affairs whilst you are still mentally capable.

Question
Will a French MPF be recognized in the UK, for example in relation to UK bank accounts?

Answer
If the MPF has been validly executed in accordance with French law and the country in which the assets are located is a signatory to the Hague Convention of 13 January 2000, then that country will recognize the MPF. The UK and France are both signatories to the Hague Convention of 13 January 2000, and recognize each other’s validly executed LPAs or MPFs. Practically though, a UK bank will probably want a translation and an affidavit of law from a English/French law specialist in order to explain the document. In our experience, the prudent and most practical approach would be, where possible, to have an LPA in the UK in relation to UK assets, and an MPF in France in relation to French assets.

This article first appeared in French Entrée Magazine issue 92 MAY/JUNE 2012.