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In the matter of various applications concerning foreign representative powers: [2019] EWCOP 52

This judgment relates to five separate related applications before the Court, except that each asked the Court to make orders to give effect in England and Wales to representative powers originating in a foreign jurisdiction.

The Five Cases

(I) BMA 1236379T: relates to the appointment of the Public Guardian and Trustee of British Columbia, Canada as Committee of the Estate of BMA pursuant to a Certificate of Incapability;

(II) AB 13285001: relates to an Enduring Power of Attorney executed in New Zealand;

(III) GED 13257265 relates to a Continuing Power of Attorney executed in Ontario, Canada;

(IV) AJC 13286102 relates to a Power of Attorney executed in Spain; and

(V) TCM 13303939 relates to a Lasting Power of Attorney registered with the Office of the Public Guardian of Singapore.

The Court noted the need for clarification in respect of the Court's approach to foreign powers of attorney and for the Court to hear full argument to determine this important and difficult point of law.  The Official Solicitor accepted an invitation to act as Advocate to the Court.

The Issues
For the Court to determine the five applications, three broad issues were identified:

(1) Is a foreign power of attorney capable of constituting a 'protective measure'?

(2) Is there a capacity threshold to the Court's jurisdiction?

(3) Where there is a valid and operable foreign power of attorney in place, is the jurisdiction of the Court of Protection under section 16 of the Mental Capacity Act 2005 limited?

The Legal Framework
The legal framework is set out, in detail, in the judgment. In summary:

(A) The Hague Convention: The Convention on the International Protection of Adults ('the Convention') was formally concluded on 13 January 2000 at The Hague. The Convention makes provision for two conceptually difference matters: the mutual recognition of protective measures by Contracting States; and, the resolution of questions relating to private mandates.

(B) The Convention was accompanied by an explanatory report by Professor Paul Lagarde ('The Lagarde Report'), which was reissued with amendments in 2017.

(C) The UK has signed the Convention but has ratified it only in relation Scotland (not yet in relation to England and Wales), which was definitively spelled out by Sir James Munby P in Re O (Court of Protection: Jurisdiction) [2014] Fam 197.

(D) Schedule 3 of the Mental Capacity Act 2005 ('the Act') (given effect by section 63 of the Act), is the primary source of domestic law and makes provision for the same two concepts as are addressed in the Convention. Paragraph 2(4) of Schedule 3 provides that 'an expression which appears in this Schedule and in the Convention is to be construed in accordance with the Convention.'

(E) Schedule 3, headed 'International Protection of Adults', contains two parallel sets of provisions. One set of provisions will incorporate the Convention into English domestic law, although paragraph 35 provides that those provisions have effect only once the Convention has been brought into force (not yet the case in relation to England and Wales). The second set, which is currently in force, based on but independent of the Convention, provide a set of rules for the recognition and enforcement in England and Wales of foreign protective measures and for the applicable law in respect of lasting powers of attorney, without any requirement for the foreign state to have assumed reciprocal obligations to the jurisdiction of England and Wales. These apply generally to those states which have signed the Convention, as well as those which have not.

(F) The Convention and those parts of Schedule 3 which are currently effective apply to 'protective measures' in respect of an 'adult'. The meaning giving to each term is not identical:

a) 'Adult' in the Convention means a person who has attained the age of 18. In paragraph 4 of Schedule 3 'adult' includes, in some circumstances, people between the ages of 16 and 18.

b) 'Protective Measure' definitions are more closely aligned, and, for the purpose of the cases with which the court was concerned the differences of phraseology were not material.

c) The concept of 'habitual residence', defined by neither the Act nor the Convention, should be given the same meaning as is applied in other family law instruments, such as the 1996 Hague Convention on the International Protection of Children and Brussels IIa, ie: it is a question of fact to be determined by reference to the conditions and reasons for the person's stay in a particular jurisdiction, its duration, and any other factors which make clear that the person's presence is not in any way temporary or intermittent.

(G) The effect of the Schedule 3 provisions which are in force 'can be best understood' by considering the Court of Protection's Jurisdiction in three separate parts:

(A) 'full, original jurisdiction' - ie: The Court's powers to make declarations and orders under sections 15-16 of the Act. The scope, as set out in para 7(1) of the Schedule, provides that two different states may have concurrent jurisdiction over aspects of a person's life. Where concurrent jurisdiction is present, whether the Court of Protection should exercise its jurisdiction or choose not to falls to be determined according to the doctrine of forum non conveniens and the principles of Spiliada Maritime Corporation v. Cansulex Ltd; The Spiliada [1987] AC 460. The possibility of conflict arises. If the Convention applies Article 9 supplies the answer; there is no equivalent provision in the Schedule.

(B) in respect of recognition and enforcement of 'protective measures' - Part 4 of the Schedule sets out additional powers to recognise and enforce protective measures that relate to adults, irrespective of any reciprocal arrangement. The basic provisions (paragraph 19 relating to recognition and paragraph 22 relating to enforcement) are mandatory terms. Paragraph 19 provides (limited) circumstances in which the Court of Protection may disapply the mandatory provisions. 

(C) In respect of private mandates:

i. The Convention contains specific provisions relating to what it calls 'powers of representation' granted by an adult 'to be exercised when such adult is not in a position to protect his or her interests.'

ii. Article 15 specifics the applicable law according to the nature of the questions under consideration.

iii. Paragraphs 13-15 of the Schedule bring into effect similar provisions applicable presently as a matter of English domestic law.

iv. Paragraph 13 concerns lasting powers of attorney.

v. The definition of 'lasting power' at paragraph 13(6) is constructed by reference to domestic provision and then the addition of "any other power of like effect".  There has not been any judicial consideration of the meaning of this phrase, however the comparative mechanism and the provisions of Article 15 'clearly indicate' an intention to encompass powers of representation which are capable of exercise after the donor has ceased to have mental capacity to take decisions authorised by the power.

vi. In respect of the existence, extent, modification or extinction of such a lasting power, the key determinant of the law applicable is the donor's place of habitual residence at the time the power is granted: (a) if at that time the donor was habitually resident in England and Wales, it is the law of England and Wales which applies unless the donor specified the law of a connected country  - paragraph 13(1); (b) if at that time the donor was habitually resident in another country, but England and Wales is a connected country, it is the law of the other country which applies unless the donor specified the law of England and Wales – paragraph 13(2).

vii. The Court noted that the three ways in which a country may be 'connected' with the donor pursuant to paragraphs 13(3) and (4) appear to leave a lacuna: what is the applicable law where the donor was not a national of England and Wales, was not habitually resident in England and Wales, and had no property in England and Wales when he signed the foreign power? No provision is made in Schedule 3 for that situation.

viii. Fewer complications arise in respect of the exercise of a foreign power – paragraph 13(5) provides that the law applicable is (always) the law of the country where it is exercised. However, the Court posed the question, what is the position where the law of England and Wales is more restrictive than the extent of the power properly granted in accordance with the laws of a different country?

ix. Article 16 provides an additional safeguard where the exercise of a foreign an power is considered to be insufficiently protective. The domestic provisions at paragraph 14 of Schedule 3 mirror this approach. Whilst the interplay is not spelled out, the Court found that the two sub-paragraphs of paragraph 14 must together be interpreted as meaning that the court may disapply or modify a power so as to provide for its exercise in England and Wales to be no wider than the restrictions in the laws of England and Wales; and, in considering whether to disapply or modify the power, the court must have regard to the applicable law of the other state only to that extent.

x. Paragraphs 17 and 18 of Schedule 3 provide a 'longstop' provision which avoid the Court having to give effect to foreign powers of attorney if it could be repugnant to do so.

xi. Despite paragraph 15 of the Schedule providing an 'attractive possibility' of a domestic register of foreign powers, to date no regulations have been made.

(H) There are specific procedural rules in respect of applications made in connection with the Court's additional jurisdiction under Schedule 3, set out in Part 23 of the Court of Protection Rules 2017 - see paragraphs 23.1-23.3 of the judgment.

Discussion
The above legal framework means that, where an adult holds property in England and Wales which is likely to require on-going management, there are various options open to the holder of a foreign power of representation ("R") to ensure that he or she has the necessary powers of management on their behalf. These options are as follows:

(1) R may simply rely on the power, using it directly to demonstrate their authority (having regard to paragraphs 13 and 14 of Schedule 3).

(2) R may obtain an order from the country where the donor is habitually resident permitting him to manage the donor's property (essentially the equivalent of a deputyship order); and then seek recognition of that order under Schedule 3 Part 4 / Rule 23.4.

(3) R may seek a declaration under s15(1)(c) and Rule 23.6 that he will be acting lawfully when exercising authority under the power in England and Wales.

(4) Orders under s16 of the Act: "full, original jurisdiction."

(5) R may apply for orders of recognition of the power of representation as a 'protective measure.'

Number (5) seemed to the Court to be the application intended by all of the applicants in the five cases with which the Court was concerned.

Protective Measure
In order to determine the applications, it was necessary for the Court to consider further what constitutes a 'protective measure' for the purposes of the recognition provisions of Schedule 3 paragraph 19.

The question of what constitutes a "protective measure" was considered, on paper and without the benefit of legal argument, in the matter of Re JMK [2018] EWCOP 5. Following argument in this case, and being referred to paragraphs 8.30 – 8.32 of The International Protection of Adults where the authors set the definition of 'protective measures' in the context of earlier international agreement (see para 27), the Court came to the view that understanding 'protective measures' as limited to arrangements that have been made or approved by a forgiven court is unduly restrictive.

The Court was persuaded that an interpretation of Schedule 3 paragraph 5(3) could encompass DoLS authorisation under Schedule A1 of the Act.

The Court found that such interpretation does not however necessarily encompass private mandates. Thus:

'In essence, a power of attorney is a private arrangement between a donor and his chosen attorney(s). The capacitous donor is making provision for his own affairs. That the arrangements may continue if the donor loses capacity is not sufficient to render them a measure directed to the protection of the person or property of an 'adult.' Therefore, a power of attorney is not susceptible to an application for recognition or enforcement. That conclusion was uncontroversial at least until 2017. Where there is no further step of registration of a power of attorney with either a court or an administrative body, it remains uncontroversial.' (Para 29).

However, with the publication of the updated (2017) version of the Lagarde Report, there appears to have been a change in position in respect of registered powers (see para 30), which seems to suggest that the intention underpinning the Convention may have been that a registered power could be susceptible to an application for recognition and enforcement. The Advocate to the Court submitted that there are 'clearly arguments both ways', but the debate did not affect the conclusion in respect of the Continuing Power of Attorney in Re JMK (because there was no suggestion of any registration or confirmation), and was not determinative of any of the five cases before the Court. The Court noted that: '...if, when an appropriate application is made, the court were minded to take the view that a power of attorney can be transformed into a protective measure through a process of registration linked to loss of capacity, application of the recognition and enforcement provisions of Schedule 3 Part 4 still require that the circumstances of disapplication under paragraph 19 (3), (4) and (5) do not apply.'

Application to the Five Cases
In relation to the individual cases the Court concluded as follows:

BMA:

- Brief facts are set out at paragraph 6.

- The Public Guardian and Trustee of British Colombia sought recognition of his appointment as Committee of the Estate of BMA pursuant to a Certificate of Incapability issued under the British Colombia Adult Guardianship Act.

- The Court was satisfied that the Certificate is a protective measure; and, that BMA is an adult and habitually resident in British Colombia when issued.

- In relation to being satisfied that the mandatory requirement to recognise the protective measure pursuant to paragraph 19(1) should not be disapplied pursuant to paragraphs 19(3), (4) or (5), the Court found that further information is required for the recognition application to be determined.

- As an alternative method of addressing what appeared to be the purpose of the application, the Court made a 'one-off' order under the full, original jurisdiction of the Court of Protection authorising the Public Guardian and Trustee of British Colombia to transfer funds held to the credit of BMA with NatWest to her account in British Colombia.

AB:

- Brief facts are set out at paragraph 7.

- The application sought recognition of an Enduring Power of Attorney granted in New Zealand, where AB has been habitually residence since 1989, the apparent purpose of which appeared to be to enable the person with powers of representation in the place of AB's habitual residence to deal with HMRC in relation to AB's only property in England and Wales (a widow's pension paid by a UK based company pension scheme).

- The Court found there are two ways in which this purpose could possibly be achieved: treating the application as one seeking a declaration under s.15(1) of the Act, or an 'one-off' order under section 16 of the Act.

- The Court found that further evidence would be required to satisfy the former option, but that the requirements for the latter course were made out.

GED:

- Brief facts are set out at paragraph 8.

- This application was brought by GED's husband as attorney under a Continuing Power of Attorney of Ontario with the purpose being to put funds standing to the credit of GED in an English bank account under the same management as any assets she has in her country of habitual residence.

- Again, the Court determined that there are two ways in which this could possibly be achieved.

- Firstly, an application seeking a declaration under s.15(1) of the Act (the Court was not satisfied that the matters required for such to be granted were present), or secondly, the making of a 'one-off' order under s.16 of the Act authorising ED to transfer the balance of GED's NatWest account to her Ontario account. The Court was not satisfied either that there was sufficient evidence to address all matters required relating to the second option.

- Considering the matter of proportionality pursuant to Rule 1.1(1) of the COP Rules 2017 the Court determined that the s.16 option was the more appropriate and directed the filing of an application of relevant forms etc (including: COP20A and B certificates; COP3 assessment; and, a COP24 statement).

AJC:

- Brief facts are set out at paragraph 9.

- This application sought recognition of a Spanish power of attorney with the apparent purpose of enabling AJC's children to manager his state and private pensions in the UK and a bank account.

- The Court could not be satisfied that AJC's power is 'of like effect' and thus no declaration under s.15 of the Act could be made. Other required matters were not addressed in the evidence before the Court.

- The Court determined that there are three remaining options:

- The Spanish court could be invited to appoint a Tutor or Curador on the basis that AJC is habitually resident in Spain, and for then an application to the made for that order to be recognised. This is beyond the scope of the powers of the Court of Protection.

- If AJC retains capacity, AJC executes an English Lasting Power of Attorney, which requires the Court to do nothing.

- If AJC lacks capacity within the meaning of s.2 of the Act, the Court could appoint a property and affairs deputy for him, which would require the submission of a COP3 assessment of AJC's capacity to manage his property and affairs.

- The applications were refused as submitted, but permission was given for the relevant documents to the filed with a view to the Court appointing a property and affairs deputy(ies) for AJC.

TCM:

- Brief facts are set out at paragraph 10.

- The application sought recognition of a Lasting Power of Attorney registered within the Office of the Public Guardian of Singapore. The apparent purpose appeared to be to enable TCM's wife and daughter to make decisions on behalf of TCM in respect of his welfare.

- The medical evidence satisfied the Court that TCM is an adult and the Court was further satisfied that the form used to execute the power is 'of like effect' within the meaning of Schedule 3 paragraph 13(6).

- The Court was not however satisfied that TCM's Lasting Power of Attorney constitutes a 'protective measure' within the meaning of Schedule 3 paragraph 5.

- The Court considered whether there are alternative means of meeting the purpose of the application, thus:

- The possibility of a declaration under s.15 of the Act. The Court found that the power is not within the requirements of Schedule 3 paragraph 13(2). It falls in the lacuna identified at paragraph 22.5 of the judgment. The Court agreed that 'logic, and fidelity to the principles of the Convention' point to the applicable law in these circumstances being the law of the state of habitual residence at the time of the granting of the power (ie: Singapore). The Court noted that this approach seemed most closely consistent with the approach take in Schedule 3 of paragraph 13(2). The Court was satisfied that TCM's power complies with the necessary formalities under Singapore law, is 'of like effect' within the meaning of Schedule 3 para 13(6), remains valid and is not subject to any relevant restrictions on the powers of the attorney. The Court noted, more straightforwardly, that pursuant to Schedule 3 paragraph 13(5) the law applicable to the exercise of TCM's power within England and Wales is the law of England and Wales. The Court found it necessary, in order to ensure that exercise of TCM's power in England and Wales is sufficient to guarantee the protection of his person in equal terms to those provided by the law of England and Wales, to modify the power so as go make clear specifically that it does not extend to giving or refusing consent to life-sustaining treatment and to limit the power of gifting by the attorneys to the limits set out in section 12 of the Act. A s.15 declaration was also deemed appropriate. If, contrary to the above position, Schedule 2 paragraph 14(2) does apply to the Court's jurisdiction to modify TCM's power, the Court was satisfied that these two modifications have full regard to the law of Singapore up to the point where it is not compatible with the restrictions of the law of England and Wales (alternatively, they are justified on the basis of paragraphs 17 and 18 of Schedule 3).

- The second possible option would be for the Court to exercise its 'full, original jurisdiction' on the basis that TCM is now habitually resident in England and Wales. The Court held that further evidence would need to be filed to satisfy that TCM lacks relevant capacity.

- As TCM receives no income and has no assets in England and Wales, the Court therefore noted that it is not clear a property and affairs deputyship order would assist.

- The Court made a declaration pursuant to s.15 of the Act that the attorneys will be acting lawfully when exercising authority under the power in England and Wales, subject to the modifications that the authority to make gifts is limited to the circumstances set out in section 12 of the Act and that the authority to give or refuse consent to treatment does not extend to life-sustaining treatment to accord with section 11(8) of the Act.         


Summary by Emily Ward, Barrister & Deputy Head of Family at Broadway House Chambers

You can read the full judgment of In the matter of various applications concerning foreign representative powers: [2019] EWCOP 52 on BAILII