When you are appointed as a Property and Affairs Deputy by the Court of Protection then you are given authority by the Court to deal with all assets belonging to the individual (P) wherever they are situated.
For the vast majority of Deputies, this will only consist of assets within England and Wales. However, in a minority of cases, P may have assets in an overseas jurisdiction or P may wish to acquire assets overseas.
Dealing with existing overseas assets as a Court of Protection Deputy
The first step will be to ascertain what the assets are and the extent and value of them. Hopefully this may have been possible during the application process, but in the absence of a Court authority, it may well be that overseas authorities are unwilling to disclose any information.
Indeed, one fundamental issue whether dealing with existing overseas assets or acquiring new overseas assets is working out what status the England and Wales Court of Protection Order has in the overseas jurisdiction.
The usual recommendation would be to instruct a suitably qualified lawyer in the overseas jurisdiction to assist in dealing with the overseas authorities and obtaining the necessary information.
Once this information has been obtained, the decision then has to be taken as to whether it is in P’s best interests to retain or dispose of these assets.
The mere fact that retaining overseas assets will inevitably prove complicated, with additional expenses for the professionals involved, does not mean that the decision will inevitably be to dispose of the assets and transfer funds back to an English or Welsh bank account, although clearly the questions of complication and expense will be relevant to the overall decision.
Acquiring overseas assets as a Court of Protection Deputy
It is unlikely that, as a Deputy, you would make a decision to acquire an overseas asset as part of the investment advice that you receive in accordance with your professional duties. It may be that the investment advice includes offshore bonds, but as these in practical terms will be administered from England or Wales by the Deputy and their financial advisor, this is a much more straightforward process.
The most likely scenario is that, as Deputy, you will be asked to acquire a property overseas where P has family links and may spend a considerable amount of time.
The starting point is to consider whether this is in P’s best interests. If so then, certainly with a property acquisition, the next step would be to submit an application to the Court of Protection for their specific approval of the acquisition. In this respect you would expect to supply full financial details as well as a statement from yourself as Deputy as to why the acquisition is in P’s best interests and also statements from relevant other professionals (e.g. overseas lawyers, property agents, case managers and therapists) supporting the application that is being made.
Once the authority has been given, which is likely to take a period of several months, then further steps can be taken with the appropriate professionals based in the relevant jurisdiction, to go through the acquisition process.
Part of this will be ascertaining what additional authority is required in the overseas jurisdiction to reflect your authority as Deputy. The order of the Court of Protection will not of itself be automatically accepted as sufficient proof.
One specific issue that will need to be considered is the ownership of the asset – whilst in England and Wales the Land Registry will register either the name of the Deputy or the name of the individual as property owner with appropriate restrictions, this may not be possible in the overseas jurisdiction. You may then specifically need to consider whether you are comfortable either with the property being in your name as Deputy with no apparent restrictions, or the property being in the name of P with no apparent restrictions. This will be something to consider on the individual facts of each case.
Dealing with overseas assets as a Court of Protection Deputy is difficult, complicated and brings with it additional expenses.
You therefore need to consider very carefully whether retaining existing assets overseas or acquiring new assets overseas is in P’s best interests and the questions of complication and expense need to be taken into account as part of this process.
How Nelsons can help
For further information on dealing with overseas assets as a Court of Protection Deputy or any related subjects, please get in touch with Richard or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.