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Recognition of Deputyship Orders Abroad

View profile for Leah Merrifield
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We recently attended a Court of Protection masterclass, and one of the topics discussed was the procedure for the recognition of a Deputyship Order in Italy.

A Deputyship Order is a type of court order that is made by the Court of Protection. It appoints someone to act on behalf of a person who has lost mental capacity. Deputyship Orders are often required when a person loses mental capacity and has not put a Lasting Power of Attorney in place. 

Under Italian law, a foreign Court Order relating to an individual’s mental capacity will be recognised if it does not go against public order. Unfortunately, this does not mean that a Deputyship Order will simply be accepted by an Italian bank. The Deputyship Order needs to be formally recognised by the Italian Courts and some institutions may refuse to accept anything less than an Amministrazione di Sostegno (the Italian equivalent of a Deputyship Order). It is also worth noting that foreign Lasting Powers of Attorney are not recognised in Italy.

There is often confusion within banks about what they require to be able to accept a foreign Deputyship Order. This can cause delays in accessing assets, as well as mounting costs as arguments pass back and forth about whether the Deputyship Order should be accepted.

This resonates with my own experience of the difficulties that a deputy can encounter in using a Deputyship Order to access assets in Ireland. Foreign Lasting Powers of Attorney are not recognised in Ireland and a Deputyship Order may need to be recognised by the Irish High Court before it will be accepted by a bank. The current overhaul of the Irish Wardship system adds further uncertainty.

As we live longer and more complicated lives, it will become increasingly common for deputies to act on behalf of people who hold assets in more than one jurisdiction.

The Hague 35 Convention on the International Protection of Adults 13 January 2000 offers a potential solution. Hague 35 presents a system of mutual recognition whereby an interested person could apply for a certificate of recognition of a foreign protective measure (such as a Deputyship Order) put in place in another Convention Country. Hague 35 has been signed but not ratified by England and Wales, Italy and Ireland and as such has no legal effect in these countries.

Using a Deputyship Order to access assets in another jurisdiction can be complicated. The process will be smoother if you take expert advice, get in touch with the bank or other institution at an early stage to check their requirements and contact someone with local knowledge of the procedures.

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