This firm assists the families of elderly relatives who live in Italy, often where the elderly person has worked for many years and retired here, but now live alone. The elderly person may have close relatives who live abroad and cannot provide day-to-day assistance. In some cases they may be estranged from those relatives or even have no next of kin alive.
We can assist the family to put measures in place, such as a power of attorney or court order, to ensure their relative continues to be well-cared for, and can access funds to finance their care in later years.
If the elderly person has legal capacity, they can deal with their own affairs, and are able to communicate their instructions to family or friends who support them in their day-to-day needs, it is sufficient to have a power of attorney in place in Italy.
Powers of attorney in Italy
A power of attorney in Italy must take the form of a public deed. This means that the signature of the document by the elderly person is witnessed by a Notary, a public official, is kept in the archives of the studio of the Notary and will be recognised by all Italian authorities. The Notary will issue certified copies (“copie autentiche“) as and when needed. This document will name one or more “attorneys”: the persons being nominated to act on behalf of the elderly person.
There are two types of power of attorney. A general power of attorney will include all powers necessary for that attorney to act in any circumstances (“procura generale“) including the sale of property,drawing up a contract for a domestic worker or operating a bank account. A special power of attorney (“procura speciale“) can be made for a single specific task such as the sale of property, , or dealing with the administration of an estate.
A power of attorney made in another jurisdiction is unlikely to be recognised in Italy. The Lasting Power of Attorney made in the UK, for example, has no legal standing in Italy.
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A particular difference between the LPA and a power of attorney made in Italy, is that in Italy the attorney is no longer able to act if the elderly person loses capacity to manage their own affairs give instructions. An Italian power of attorney is not valid for the person’s lifetime. Using the power of attorney in circumstances where the elderly person had no ability to understand or agree with the action is a criminal offence.
Applying to the guardianship judge in Italy
Amministrazione di sostegno
The families of elderly relatives living in Italy often approach us when their relative is losing or has already lost capacity. In that case unfortunately no existing power of attorney will be valid in Italy, and the family will have to apply to the guardianship judge (“ufficio del giudice tutelare“) at the Italian civil court in the place where the person is resident, requesting the appointment of a guardian (“amministratore di sostegno“).
The guardian will have the legal authority to assist the person in their day to day needs to the extent only that the court considers is necessary. The judge will request the elderly person to attend a hearing, together with all interested parties and the state attorney (“pubblico ministero“). Where the elderly person is unable to travel to the court, the judge will go to their home or meet them in hospital. This type of order aims to retain as much autonomy as possible for the elderly person over their affairs.
In cases where a person has lost total capacity, and this is likely to be a permanent condition, an application should alternatively be made to a civil court judge asking for an order to appoint a guardian (“tutore“). An order in this type of case, which is known as “interdizione“, will not be made lightly as it deprives the person of all legal rights and effectively the guardian is given the power to act on their behalf in all and any matters.