E&W COP attempts to clarify 'difficult' matter of foreign representative powers
The hearing came about in March 2018 because the court had been asked to recognise an unregistered 'continuing power of attorney' (CPA) validly made in Ontario, Canada. The daughter and son-in-law of the donor appear to have made the application in order to get control of some property in England and Wales.
At the time, Hilder HHJ ruled that the document could not be recognised in England and Wales unless it had been approved by a court in the foreign jurisdiction, which the CPA had not (Re JMK, 2018 EWCOP 5). Because of this, it did not fall within the term 'protective measure' for the purposes of recognition under Schedule 3 of the England and Wales Mental Capacity Act 2005 (MCA 2005).
However, this decision came under some criticism: the mental capacity team at 39 Essex Chambers described it as 'an unfortunate judicial wrong turn', and detailed the authorities that Hilder should have followed to determine recognition or otherwise of the Canadian CPA.
This and other criticism led Hilder to seek clarification of the court's approach to foreign powers of attorney. She invited the Official Solicitor to present the JMK case again, acting as advocate to the court, with some additional cases from other jurisdictions, and with appropriate legal submissions. This resulted in the judgment now reported, Re Various applications concerning foreign representative powers (2019 EWCOP 52).
The cases were from Ontario (the original JMK case, now renamed GED); British Columbia; New Zealand; Singapore and Spain. Three broad issues were identified as determining the court's decision on these five applications, namely whether a foreign power of attorney is capable of constituting a 'protective measure'; whether there is a capacity threshold to the court's jurisdiction; and, if there is a valid and operable foreign power of attorney in place, whether the court has only limited jurisdiction under s.16 of the MCA 2005.
The five cases were judged individually, and Hilder decided the following:
- The Ontario CPA issued in relation to GED had not been the subject of any form of registration or confirmation and could not be recognised as a protective measure. Hilder therefore told the applicant (GED's husband) to provide some further information on the application in order to support its recognition under MCA 2005 in a further hearing (GED 13257265);
- A certificate of incapability issued by British Columbia was recognised as a protective measure that properly secured the protected person's interests and position, allowing British Columbia's public guardian to take charge of the protected person's funds (BMA 1236379T);
- An enduring power of attorney executed in New Zealand was not registered with any official body in New Zealand and could not be considered a protective measure, and could only be recognised after a further application to the court (AB 13285001);
- A lasting power of attorney registered with Singapore's Office of the Public Guardian could not be recognised, because Hilder was not satisfied that the power had been registered within six months of the date on which the donor signed it and could not constitute a 'protective measure' under MCA 2005 (TCM 13303939); and
- A power of attorney executed in Spain could not be recognised because it contained nothing to indicate that the authority conferred would continue after the protected person lost capacity (AJC 13286102).
According to 39 Essex Chambers, Part 23 of the Court of Protection Rules 2017 provide for a standalone application to be made in any case where there is doubt as to the basis upon which the attorney under a foreign power is operating.
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