March 2017

What is a lasting power of attorney?

Posted on 14 March 201721 March 2025 by Sophie Soraf

A lasting power of attorney is a legal document which lets you pick someone you trust to make decisions on your behalf, if you’re unable to do so yourself.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney is a legal document, which allows you to choose a person to make decisions on your behalf if you are ever unable to do so. There are two types of LPA:

Lasting Power of Attorney (Property and Affairs) – These replace the old Enduring Powers of Attorney and allow your chosen person to make decisions regarding your finances on your behalf such as: paying bills, collecting pensions and benefits, opening and closing bank accounts, buying and selling property.

Lasting Powers of Attorney (Personal Welfare) – This type of LPA has some similarities and cross over with a Living Will or Advance Directive. It allows your chosen person to make decisions about your welfare to include decisions about where you will live and the care and treatment you will receive. You can also use it to give your chosen person the authority to consent to or refuse life sustaining treatment on your behalf.

If I am mentally incapable of looking after my finances, my wife will automatically be able to do this, won’t she? What about my next-of-kin?

No, many people think that their husband or wife would automatically be able to deal with their bank accounts, pensions, investments (including any shares in any business you may own) and savings if they become mentally incapable but this simply is not the case. If you have not given a Property & Finance Power of Attorney to your husband or your wife then they will not have the authority to sign on your behalf without an order of the court.

Equally the law does not recognise the phrase “next-of-kin” and they would not have authority to act for you unless you appoint them or they are appointed by the court.

What happens if I don’t put in place a Lasting Power of Attorney and then become mentally incapable of dealing with my affairs?

In order for your family to be able to deal with your financial affairs it would be necessary to make an application for someone to be appointed as a Deputy by the Court of Protection. This may not necessarily be the person you would choose to act in this capacity. This process is more costly and longer than the preparation of a Lasting Power of Attorney and the Deputy has to account to the court for any actions taken on an annual basis.

My mum is becoming increasingly forgetful – what should I do?

It is important that she considers putting in place Lasting Powers of Attorney at the earliest opportunity. The person giving a Lasting Power of Attorney must be able to understand what is involved in granting this. If your mum’s condition deteriorates then she may reach the point when she no longer has the necessary capacity to grant a Lasting Power of Attorney. Do not leave it too late.

Can’t I wait until I become older before putting in place Lasting Powers of Attorney?

We recommend that you put in place Lasting Powers of Attorney at the earliest opportunity because mental incapacity could affect you at any time. For instance, a road traffic accident can cause head injuries or a stroke can affect anyone at any age.

If I am unable to make decisions about what medical treatment I want, who decides for me?

If you have not put in place a Health & Welfare Lasting Power of Attorney then the decision will be made by doctors and they will generally consult with your family but this may not be the person you would want to make these decisions. This is especially important in cases where couples are unmarried.

I want to remain in my own home for as long as possible – how can I give authority to my family to enable them to carry out my wishes?

Again, it will be best to appoint someone you trust to ensure that the authorities are aware of your wishes by putting in place a Health & Welfare Lasting Power of Attorney.

I have an Enduring Power of Attorney – what does this mean?

This was a document you could make prior to 1st October 2007. If you have a validly executed Enduring Power of Attorney dated before this time then it is still valid, and it deals with your Property & Financial Affairs. You cannot however, make Enduring Powers of Attorney any more and these have been replaced by Lasting Powers of Attorney.

The document does not deal with your Health & Welfare and you may wish to consider making one of these documents to work alongside your existing Enduring Power of Attorney.

If you are acting under an old EPA and you think the person who made the EPA is becoming or has become mentally incapable of dealing with their affairs, you have a duty to register the document with the Office of the Public Guardian. We are on hand to offer advice about the use and validity of any existing EPAs and to guide you through the registration process if and when it becomes necessary.

How much does a Lasting Power of Attorney cost?

We prepare Lasting Powers of Attorney on a fixed fee basis as follows:

For a single person our fee will be between £500 to £750 plus VAT.

For a couple our fee will be between £750 to £1,000 plus VAT.

Additionally, if you decide to register your Lasting Power of Attorney with the Court, the Court charges an application fee of £82 for each document.

How to use the donation-partage (or gift with distribution)

Posted on 12 March 201729 May 2025 by Sarah O'Sullivan

The donation-partage (or gift with distribution) is a legal instrument under French law that allows individuals to distribute their assets among their children during their lifetime. It serves as both a lifetime gift and an anticipatory succession plan. This concept is especially relevant in France, where forced heirship rules apply, ensuring children (and in the absence of children, the spouse) receive a reserved portion of the estate.

In contrast to the UK, which lacks forced heir ship laws, the donation-partage is a strategic tool to prevent disputes and simplify the inheritance process. However, it is a complex legal arrangement that requires careful consideration and expert legal advice.

Key benefits of Donation-Partage

Minimises family disputes: By agreeing to the distribution during the donor’s lifetime, children reduce the likelihood of disagreements after the donor’s death. The process helps avoid joint ownership complications and lengthy succession procedures.
Tax advantages: Assets transferred via donation-partage are exempt from death duties. This can result in significant tax savings.
Control over distribution: Donors have the flexibility to allocate assets as they see fit, provided the reserved shares of children are respected. For example, if a French estate is valued at €300,000 with two children, each child is entitled to at least €100,000, while the remaining €100,000 can be freely allocated.
Valuation protection: The value of assets transferred through a donation-partage is fixed at the time of the gift. This contrasts with outright lifetime gifts, which are valued at the time of death, potentially creating unfairness in asset distribution.

Example of valuation discrepancy

Consider a scenario where a father gifts equal sums of cash to his two children. One child invests in property while the other spends their money. Upon the father’s death, the invested property may have appreciated, leading to a perceived inequality in inheritance. With a donation-partage, the valuation is frozen at the time of the gift, preventing such disparities.

Legal formalities

Notarial deed: A donation-partage must be executed before a notaire (a public official specializing in French law).
Spousal participation: If the couple’s matrimonial regime includes joint ownership, a joint deed is recommended to manage both individual and shared assets.
Acceptance requirement: All beneficiaries must accept the donation-partage. If one refuses, the agreement remains valid for the others. The refusing beneficiary retains the right to challenge the donation if it undermines their reserved share.

Special considerations

Reintegration of prior gifts: Outright gifts can be incorporated into a subsequent donation-partage, though they will be revalued at the time of reintegration.
Conditional clauses: Donors may specify that in the event a beneficiary predeceases them, the gifted asset reverts to the donor. Proper drafting is essential to prevent complications, particularly with jointly held assets.

Why choose Tees

While the donation-partage offers substantial benefits, it is a technical legal tool requiring professional guidance. If you are considering using this mechanism to secure your family’s financial future, seek advice from a legal specialist experienced in French inheritance law.

Understanding the Macron Law : Key changes

Posted on 12 March 201729 May 2025 by Sarah O'Sullivan

The Macron Law, passed in France in August 2015, was designed to reduce bureaucratic red tape. Named after French Economy Minister Emmanuel Macron, this legislation has significantly impacted various areas of French law, including real estate. One of its primary goals is to minimize court cases related to planning permission issues.

This article outlines the most notable changes affecting French property owners and potential investors.

Can my neighbour have my house demolished?

Previously, disgruntled neighbour could initiate frivolous claims to overturn planning permissions, often citing minor technicalities. While such cases were not always successful, they caused significant delays and financial loss.

Under the Macron Law, the right to request demolition is now limited to specific areas, including:

Natural reservations and protected perimeters
Coastal strips within 100 meters of the shoreline
Areas protected by the Mountain Law
Natural 2000 sites safeguarding rare species
Sensitive areas with environmental restrictions
Zones with classified heritage buildings

Additionally, two existing conditions remain in place:

The construction must have been completed in compliance with a planning permission that was subsequently revoked.
Any demolition claim must be filed within two years of the court’s final decision to cancel the planning permission.

These changes offer greater legal protection to property owners, reducing the likelihood of groundless claims.

Building on agricultural land

Before the reform, building in agricultural zones was restrictive. Only agricultural structures or the conversion of existing buildings were permitted, without external modifications.

The Macron Law has eased these rules. Property owners can now:

Build extensions to existing buildings
Construct annexes such as garages, swimming pools, and sheds

However, it remains essential to check local planning regulations (Plan Local d’Urbanisme) before proceeding with any project.

Planning permission timeframes

The law has also introduced streamlined approval processes. Standard planning applications must be processed within two months. For projects near listed buildings requiring approval from the Architect of the Bâtiments de France, the timeframe is capped at four to five months.

If authorities fail to respond within these periods, the application is deemed approved. Additionally, planning permissions are now valid for three years, with extensions available upon request at least two months before expiry.

Changes to renting laws in France

In areas of high housing demand, known as “tense zones,” rent control measures apply. These regulations prevent unjustified rent increases, using standardised benchmarks based on factors like location, size, and building age.

From August 2015, landlords must use a mandatory rental agreement template. Furnished rental contracts also require an inventory list to ensure compliance with minimum living standards.

Notice periods for tenants in tense zones have been reduced to one month, while landlords must provide three months’ notice in all cases, with limited exceptions. Additionally, landlords must return deposits within one month if no damage is found or within two months if issues arise.

Buying and selling property in France

The cooling-off period for buyers has been extended from seven to ten days, giving purchasers more time to reconsider without losing their deposit. Sellers can now provide necessary documents electronically with the buyer’s consent. When purchasing apartments, sellers must supply minutes from the last three general meetings of the co-ownership.

Notaire fees and real estate ethics

The Macron Law has also introduced reforms for notaire fees, ensuring they are reasonable and based on objective criteria. Additionally, a code of ethics for real estate professionals mandates honesty, transparency, and up-to-date legal knowledge.

Why choose Tees

Navigating French property law can be complex. Whether you are buying, selling, or renting a property, consulting a qualified French legal professional is highly recommended to ensure compliance with the Macron Law and other regulations. Tees legal advice will help you make informed decisions and safeguard your investment in France.