STEP’s recent international mental capacity survey showed that there is a clear demand for cross-border recognition and portability of lasting powers of attorneys (LPA) and enduring powers of attorney (EPA). As a result, STEP has produced a Global Representative Power (the GRP): a template and a benchmark for a power of attorney that will be globally recognised and portable across borders. The GRP will be a template that jurisdictions can look to when seeking or initiating new legislation where it fails to exist, or reviewing existing provisions for efficiency, effectiveness and best practice. We are suggesting a universal approach to ensure the recognition of an LPA or GRP is subject to the same standards and protections in any jurisdiction.
We have sought to ensure the GRP is consistent in its language and it can be accurately and fairly applied in various jurisdictions, regardless of locally recognised legal terminology. For this reason, our use of the term ‘global representative power’ will encompass LPA and EPA, measures of protection and powers of representation. For the benefit of cross-border recognition, we recommend that jurisdictions use the terminology outlined in the GRP when considering the legislation.
What key problems is the GRP intended to solve?
The problem with power of attorney legislation is a global one. Inconsistent standards in jurisdictions means that a LPA may not be recognised in a country outside of where it was made. Many jurisdictions do not have any LPA legislative instrument at all. Other jurisdictions have LPA legislation that does not embrace the cross-border element.
The lack of cross border recognition may mean that the legal representative appointed on the donor’s behalf does not have the legal authority to make decisions in some jurisdictions. In many cases, the lack of recognition would also result in delay, distress and onerous legal fees and other additional costs. STEP believes portability is an essential feature of any modern LPA tool.
Mitigating the financial abuse of vulnerable clients has also been a key consideration in the production of the GRP. We have discovered multiple jurisdictions without a power of attorney legal framework in place. This is especially concerning as the ever‑growing, ageing global population means the risk of developing dementia and Alzheimer’s disease is higher, as is, the risk of financial abuse. The GRP framework endorses a number of safeguards aimed at preventing abuse which include restrictions on who is able to make or witness a GRP, who may be appointed as a representative and ensuring clarity around decision‑making matters in the event of marriage or divorce. Individuals are also able to revoke their GRP while they maintain decision‑making capacity.
Is STEP calling for replacement legislation?
STEP is calling for greater portability of powers in international legislation, to enable better decision making abilities concerning financial and property matters. The GRP is not ‘replacement legislation’, but rather a tool for legislators who are yet to implement LPA’s. The STEP model draws from the strengths of existing LPA legislation in jurisdictions such as England and Wales which already recognises and accepts cross-border LPA’s.
By introducing the GRP, we are calling for a global approach that adopts a uniformed template for LPAs, followed by the adoption of a consistent framework which can be applied in a global context to determine incapacity and impairment.
What are the next steps in terms of bringing GRPs into force?
STEP is urging governments to uphold standards to ensure that people are able to express their wishes and make decisions, as is their fundamental human right. We are calling on governments to provide additional measures and safeguards for people who may face loss of capacity. This includes strengthening testing of LPA’s where decisions are being made in relation to a person’s health outcomes.
STEP has produced the GRP, along with the Guiding Principles, in order to provoke greater international discussion around the themes of loss of capacity, while promoting legislation that is consistent in the cross-border context. We look forward to engaging with prospective jurisdictions to consider the benefits of implementing a more universal and cohesive legal framework.
Written by Emily Deane TEP, Technical Counsel & Head of Government Affairs at STEP