The England and Wales Court of Protection has clarified the way foreign representative powers can be effective in the two countries.
It ruled on five different cases, four of which were filed after a hearing was done in March 2018 on the matter, from New Zealand, Ontario, British Columbia, Spain and Singapore.
The court accepted four out of the five cases which asked for their power of attorney to be recognised in England and Wales.
The issue was very difficult to decide on, judge Hilder said, because the UK signed the Hague Convention on the International Protection of Adults in January 2000, but it has only ratified it in relation to Scotland after amendments were made in 2017.
Legal perspective
To understand the matter in more depth, International Adviser spoke with Lucy Samy, associate at UK law firm Irwin Mitchell.
She said: “In the matter of various applications concerning foreign representative powers, the court considered the rules associated with the requirements for foreign representatives to be recognised in England and Wales in relation to persons lacking capacity.
“The Hague Convention on the International Protection of Adults was signed by the United Kingdom, but has not been ratified in relation to England and Wales. However, Schedule 3 of the Mental Capacity Act makes similar provisions for the international protection of adults.
“This case reviewed the law and the various options open to a foreign representative where P holds property in England and Wales.”
Different routes
Samy said there are five different ways the matter can be approached, depending on what type of documentation a person has obtained from the foreign country.
“The first route is simply relying on the foreign power and using it directly to demonstrate their authority,” Samy added. “In practice, this is often ineffective, as institutions in England and Wales usually seek domestic confirmation.
“The second route involves the recognition of a foreign court order under Schedule 3 Part 4 of the Mental Capacity Act (MCA) 2005. This route is not favoured as it involves court proceedings in two jurisdictions.
“The third route is for the foreign representative to seek a declaration under s15(1)(c), that they will be acting lawfully when exercising the authority under the power in England and Wales.
“This involves evidence as to the foreign law to be filed and determination by the Court of Protection in relation to the power complying with the relevant law, as well as the requirement for the power to comply with the law of England and Wales and the section 1 MCA principles.
“The evidence given to the court was that this should be restricted to adults who lack capacity (as defined in Schedule 3, Paragraph 4) as otherwise the Court of Protection would be making decisions in respect of those outside its jurisdiction.
“The court, in this case, was able to use this to recognise an Enduring Power of Attorney in New Zealand.”
Seek advice regardless
“The fourth route is an order under s.16 – for the court to exercise its full, original jurisdiction, even where no application has been made. A court could appoint a deputy in the usual, or a one-off order simply remitting property in England and Wales to the state where P is habitually resident.
“The court would need evidence that the adult lacked capacity and the proposed order is in the best interests of P. The court in this case was able to use these grounds in relation to the case involving the recognition of a Certificate of Incapability issued under the British Colombia Adult Guardianship Act and as an alternative to the Enduring Power of Attorney in New Zealand case referred to above.
“The fifth route is for an order of recognition of the power as a ‘protective measure’, Her honour Judge Hilder considered the definition of a protective measure in Re JMK (2018), and it was understood to be arrangements made or approved by a foreign court (including where powers of attorney are registered or confirmed through a process indicating lack of capacity).
“Judge Hilder decided that the understanding of ‘protective measure’ as limited to arrangements that have been made or approved by a foreign court is unduly restrictive – but no relevant cases were before the court in this matter and so was not determinable.
“Overall, the case highlights that Schedule 3 of the Mental Capacity Act 2005 offers different possibilities for the recognition of foreign powers, the rules are far from straightforward and foreign representatives should have a route for recognition in most instances, but appropriate advice is important so that the correct type of application can be made under the relevant route.”
