Cross-border lunacy - capacity and private law

Friday, 01 October 2010
Richard Frimston looks at issues of mental capacity legislation and private international law.

Sticks and stones can break your bones, but words will never hurt you. However, we generally do try to avoid causing unnecessary hurt and the words used in mental capacity legislation have changed with the generations. The Indian Succession Act 1925 still refers to ‘lunatics’. In Scotland the term ‘incapax’ is still used although the Adults with Incapacity (Scotland) Act 2000refers to ‘adults with incapacity’. In England & Wales, ‘patient’ is no longer acceptable and we refer to persons who lack capacity, but still ‘P’ for short.

This year we have been privileged to have seen two decisions of the High Court of England & Wales considering the issues of capacity and private international law.

The continued non-ratification of Convention XXXV by England & Wales is increasingly causing difficulty

The case of Gorjat, Gorjat and Charriere v Gorjat [2010] EWHC 1537 (Ch) reminded us all that Art.12 of the Rome Convention applies to gifts. Similarly, Art.14 of the Rome I Regulation will also apply to gifts.

Readers will recall that the Hague Convention XXXV of 13 January 2000 on the International Protection of Adults provides a framework for the harmonisation of private international law in relation to incapacity issues. It deals not only with the usual questions of jurisdiction, applicable law and recognition and enforcement of protective measures, but also with the recognition of powers of representation – durable, continuing, enduring or lasting powers of attorney.

Convention XXXV entered into force on 1 January 2009 and has now been ratified by France, Germany, Scotland and Switzerland. It has been ratified by Scotland, but still has not been ratified by England, Northern Ireland or Wales.

In England & Wales, the Mental Capacity Act 2005(MCA 2005) entered into force on 1 October 2007. Sch.3 to MCA 2005 incorporated Convention XXXV into Anglo-Welsh law with effect from 1 January 2009.

The judgment of Hon Mr Justice Hedley in the case of Re MN [2010] EWHC 1926 (Fam) of 30 July 2010 is the first reported Anglo-Welsh decision relating to cross-border capacity issues, since then. The case involved the removal of MN from California to England under a Californian Advance Health Care Directive. After the removal, the Californian court made orders appointing a permanent conservator and directing the return of MN to California.

The judgment is well worth study and comes to some interesting conclusions.

The continued non-ratification of Convention XXXV by England& Wales is increasingly causing difficulty. The Office of the Public Guardian (OPG) states that it is committed to ratifying as soon as practicable. However, there seems to be no political will to achieve this, even though it has been feasible in Scotland.

Many other jurisdictions are looking at their own mental capacity legislation and ratification, including Austria, Finland, Ireland and Northern Ireland.

One consequence of non-ratification in England & Wales is that the OPG appears incapable of producing a certificate under Art.38, so that there is no mechanism to produce an official certified copy of a registered Enduring or Lasting Power of Attorney (LPA) for production in another state, even though a number of states would recognise an Anglo-Welsh LPA if such an official copy could be produced.

It would be most helpful if any members coming up against other problems resulting from non-ratification of any EU member states could let me know. The Ministry of Justice has had more than five years since the Mental Capacity Act was enacted, in which it could have organised ratification. Scotland managed it on 5 November 2003. The fact that England & Wales has still not ratified, almost seven years later, is now pure cross border lunacy. Isn’t it time we all went mental?

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Richard Frimston

Richard Frimston TEP is a Partner at Russell Cooke LLP and Chairman of the STEP Cross Border Estates Group.

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