Foreign Powers of Representation and their validity in England & Wales

Does the Court of Protection ‘(the COP’) mutually recognise powers of representation, irrespective of their origin of creation?

In March 2018 this question was asked of Senior Judge Hilder in the case of Re JMK [2018] EWCOP 5 where she refused to recognise a Canadian Power of Attorney as a ‘protective measure’ for the purposes of Schedule 3 of the Mental Capacity Act (MCA) 2005.

Although this decision attracted critique, the document in question was produced absent of any formal court process or supervision. In addition, there were concerns as to lower thresholds of capacity for cross border representative powers.

The same question was asked again of Senior Judge Hilder, 18 months later in November 2019. The case of Re Various applications concerning foreign representative powers [2019] EWCOP 52 asked her to re-examine the scope for application of foreign powers of representation to the provisions of the MCA 2005.

Revising the previously limited scope for the utilisation of foreign powers of representation in the UK, Senior Judge Hilder noted that foreign representative powers could be transformed into an English protective measure through a process of registration linked to loss of capacity.

The 2000 Hague Convention on the International Protection of Adults creates a cross-border coherent mechanism for the protection of adults and their property when they are not in a position to protect their own interests.  For ratifying member states, this provides for the mutual recognition of foreign protective measures.

Whilst the UK is a party to the convention, it has not yet ratified it and this all-encompassing convention is therefore not applicable in England & Wales.

Setting down her judgement in the recent case of Re Various applications concerning foreign representative powers [2019] EWCOP 52 Senior Judge Hilder says holders of foreign powers of representation have five options:

1. Seek to rely on that power in its original form without prior approval from the COP

• Although this is unlikely to be successful as UK financial institutions usually seek evidence of domestic authority to act.

      2. Obtain an order from the country where P is habitually resident and seek recognition of this order in England & Wales

• This is an unattractive option as it is likely to be a lengthy process requiring applications to two separate Courts and therefore inappropriate for emergency situations.

      3.Seek to obtain a declaration under section 15(l)(c) of the MCA (2005) that they are acting lawfully in England and Wales under Rule 23.6

• Note the COP confirmed that Schedule 3, Paragraph 13 of the Act must be complied with. This means P must have been living in England & Wales at the time the foreign power was granted or England & Wales must be a ‘connected country’. Schedule 3, Paragraph 13(3) defines ‘connected’.

       4.Ask the COP to make a one-off order under s.16 MCA 2005 to authorise a transfer of the foreign power/ appointment of the holder to validate the power into English law

• The COP will only utilise s.16 MCA 2005 if both2 and s.4 MCA 2005 are fully satisfied. In short, the COP must be satisfied P lacks capacity and the order sought is in the best interests of P.

        5.Apply for recognition of the power of representation as a ‘protective measure’ under Schedule 3, Paragraph 19.

• Senior Judge Hilder widened the scope of what can be defined as a ‘protective measure’. However, it remains that the foreign power must have been made or approved by a court and registration linked to the lack of capacity on the part of P.

The COP can recognise foreign powers of representation however, the process and mechanisms to enable recognition remain complex.  The Court will have regard to the specific circumstances of the power, such as the initial creation of the foreign power and the state of mind of P before a ratifying order or power is concurrently given in England and Wales.

Should you require assistance on this specific issue, please contact the Court of Protection team at Anthony Gold Solicitors.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*