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My father retired to Spain a decade ago, where he purchased a house and opened a local bank account. Due to his declining health, he returned to the UK last year and organised a lasting power of attorney (LPA) to help me look after him and make decisions about his health and finances. He still owns the house in Spain and has savings in his bank there, but he no longer has the capacity to make decisions about them. Does the LPA mean I can sell his overseas assets and transfer the money back to the UK? If not, how can I do so?
Julie Man, partner in the private client team at law firm Russell-Cooke, says the property and financial affairs lasting power of attorney (LPA) was put in place when your father had mental capacity. If the LPA is registered with the Office of the Public Guardian and he can no longer manage his finances, you can step in to handle them. However, the LPA only covers England and Wales. It is not designed to be used overseas.
If your father has no Spanish equivalent of a power of attorney, then trying to rely on the LPA to deal with the Spanish assets can be a grey area and difficult. It really depends on the Spanish requirements and whether they recognise your LPA. Solutions can be found but are often time consuming and expensive.
To be able to sell the property with the best possible outcome, will depend on whether both a notary, and land registrar, in Spain accept your LPA. This would involve providing supporting documents such as an affidavit of English law from an English solicitor, confirming the validity of the LPA and the faculties of the attorney. The affidavit should be translated into Spanish by a sworn translator and also legalised with the Apostille of The Hague or a simplified procedure that certifies the authenticity of public documents for use across countries.
The LPA would also have to be translated into Spanish and a copy would have to be certified by a UK notary public and, again, legalised with the Apostille of The Hague. There are notaries in Spain who accept LPAs but some do not, so the choice of notary is key. It is important to mention that you also need acceptance from the land registrar, who will have the final say.
With regard to the bank account there is no clear answer as this is totally dependent on the bank’s internal procedures. Some banks may be happy to accept a notarised translated copy of the LPA supported by an affidavit of English law in Spanish as above. However, some may go further and require a series of documents making the task difficult and time consuming.
People are living increasingly international lives and it can be relatively simple to cross borders and buy property or have assets abroad. Unfortunately, when it comes to legal frameworks and handling mental capacity issues there is a lack of consistency between countries. This leaves vulnerable adults in an undesirable position. The inconsistency between jurisdictions needs addressing as globally the older generation lacking capacity continues to grow.
What are our legal options over boundary dispute?
Our neighbour is in the process of building their extension too close to our shared boundary. The neighbour has tried to justify this via their architect, who claimed during the “party wall” process that the boundary was incorrectly depicted on the planning drawings and is therefore building closer to the shared fence. We have recently found evidence of their fraudulent planning application, so has a new window for judicial review opened? We are looking for legal options now that aren’t going to financially cripple us.
Maisie Ayres, property litigation solicitor at JMW Solicitors in London, says decisions made by a local planning authority (LPA) can only be challenged in the High Court if the planning authority made a legal mistake. Judicial review (JR) allows you to challenge the lawfulness of a planning decision, but it is expensive with no guaranteed outcome.
The time limit to commence JR proceedings of a planning decision is six weeks from the date of the relevant decision. It is very unlikely that a new window has opened because of your recent finding. You could still try, but the court rarely grants an extension of the deadline, and applications made outside of this timeline need to demonstrate extremely compelling reasons for the delay.
If the review is successful, the original decision is quashed and the LPA must correct the legal mistake and reconsider the application. However, it should be noted that the LPA may come to the same decision even with the legal mistake corrected. If you are unsuccessful, you may be liable for some or all of the other party’s legal costs.
There are other options. Consider reporting the inaccurate plans to the LPA. Planning permission is often granted subject to the condition that the development must be carried out in accordance with the approved plans which were submitted with the planning application. If the plans are inaccurate, then the development may not be lawfully implementable. If your neighbour goes ahead with the construction, they could be at risk of enforcement action from the LPA.
However, much like the JR process outlined above, if the inaccuracy would have had no effect on the outcome of the planning decision, the LPA may not amend their decision.
Our next question
My ex-wife and I share custody of our two school-aged children since our divorce three years ago. At the time I was working just three days a week in the office at a bank in the City, but I’ve now been mandated to come in five days a week. My wife says this breaches our custody arrangements, as I’ve had to organise wraparound childcare when I’m in the office. This is also an added expense when I’m already supporting my ex-wife financially. How can we resolve this amicably while ensuring we continue to share custody?
A person who knowingly makes a false or misleading statement in a planning application with the intent to make a personal gain may be prosecuted under the Fraud Act 2006. If you have evidence of a fraudulent planning application, the LPA may undertake their own investigation.
If your main concern is how the works are carried out and their effect on the structural integrity of your property, speak with your party wall surveyor or a specialist solicitor. They will be able to assess the validity of the notices served and ensure that the current decision sets out sufficient protection for your property.
If works have already commenced (or are imminent) and you have a serious concern regarding potential damage to your property, seek legal advice immediately. You may be able to seek an injunction to stop works until the appropriate processes have been carried out and sufficient protection is in place.
The opinions in this column are intended for general information purposes only and should not be used as a substitute for professional advice. The Financial Times Ltd and the authors are not responsible for any direct or indirect result arising from any reliance placed on replies, including any loss, and exclude liability to the full extent.
Do you have a financial dilemma that you’d like FT Money’s team of professional experts to look into? Email your problem in confidence to money@ft.com.
