Is a Canadian Power of Attorney a ‘protective measure’ in England & Wales

 In Elderly/Vulnerable Client

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– Re: JMK [2018] EWCOP 5

Case Summary from LawSkills | Private Client specialist trainersHHJ Hilder had to consider an application by SH and PH, who are the daughter and son-in-law of ‘JMK’ for an Order to recognise JMK’s Canadian Power of Attorney (‘CPA’) pursuant to Schedule 3 of the Mental Capacity Act 2005 (‘MCA 2005’). The issue for determination by the Court was whether the CPA amounted to a ‘protective measure’ for the purposes of Schedule 3. The application for the Order had been previously dismissed on the 31st August 2017.

The facts

JMK is a widow and aged 80 years old. She has at least two children from her marriage to her late husband. On the 8th September 2014, JMK signed a document headed ‘Continuing Power of Attorney for Property’ by which she appointed SH and PH to be her Attorneys to act jointly and severally. On the top of the CPA appears the word ‘Ontario’. Below this, the words, that the instrument ‘is made in accordance with the Substitute Decisions Act 1925’. The document does not indicate whether JMK had capacity to execute the document or manage her property and affairs although at paragraph 4 there is confirmation that the Attorneys are authorised to act ‘even if I am mentally incapable.’

On the 22nd July 2015 JMK moved into DO Care Home in Canada. From the care home’s documentation JMK appears not to have capacity when she moved into the home. Although it is not clear from the judgment, there appears to be a legal issue between the family, probably in Canada over JMK’s estate. An assumption can be made that JMK probably had property in England and Wales that required managing, as this would explain why SH and PH made the application for such an Order.

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The law

Schedule 3 of the Mental Capacity Act 2005 is entitled ‘International Protection of Adults’. Protective measures are defined at paragraph 5(1) in the following terms:

“‘Protective measure’ means a measure directed to the protection of the person or property of an adult; and it may deal in particular with any of the following-

  • The determination of incapacity and the institution of the protective regime,
  • Placing the adult under the protection of an appropriate authority,
  • Guardianship, curatorship or any corresponding system,
  • The designation and functions of a person having charge of the adult’s person or property, or representing or otherwise helping him,
  • Placing the adult in a place where protection can be provided,
  • Administering, conserving or disposing of the adult’s property,
  • Authorising a specific intervention for the protection of the person or property of the adult.”

Part 4 of the Schedule is entitled “Recognition and Enforcement”. Paragraph 19 mandates recognition of protective measures, subject to specified exception, in the following terms:

“19(1) A protective measure taken in relation to an adult under the law of a country other than England and Wales is to be recognised in England and Wales if it was taken on the ground that the adult is habitually resident in the other country

(2) …

(3) But the court may disapply this paragraph in relation to a measure if it thinks that

(a) the case in which the measure was taken was not urgent,

(b) the adult was not given an opportunity to be heard, and

(c) that omission amounted to a breach of natural justice.

(4) It may also disapply this paragraph in relation to a measure if it thinks that

(a) recognition of the measure would be manifestly contrary to public policy,

(b) the measure would be inconsistent with a mandatory provision of the law                               of England and Wales, or

(c)  the measure is inconsistent with one subsequently taken, or recognised, in England and Wales in relation to the adult.”

The decision

Judge Hilder considered the decision of Hedley, J in Re MN (Recognition & Enforcement of Foreign Protective Measure) [2010] EWHC 1926 which concerned a protective measure in relation to an Order made by a Court in California and is the only authority on this point. She upheld and agreed with the District Judge’s reasoning and ruled that ‘reference to ‘protective measures’ in Schedule 3 is intended and generally understood to refer to arrangements that have been made or approved by a foreign court’. She ruled that JMK’s Power of Attorney had not been through any Court process and was not even the subject of a system of registration. Judge Hilder noted that ‘it therefore does not fall within the general understanding of the term ‘protective measure’ for the purposes of recognition by this Court pursuant to Schedule 3’.

Judge Hilder stated that ‘the Order made on the 31st August 2018 stands and that PH and SH could apply to be appointed as Property and Affairs Deputies in this jurisdiction.’

Practice

Alex Ruck Keene makes an interesting point about the judgment in 39 Essex Chambers’ latest newsletter as he believes  ‘in seeking recognition and enforcement of a Canadian Continuing Power of Attorney for Property as a protective measure (under part 4 Schedule 3 MCA 2005) Judge Hilder  ‘was led astray’ as the ‘relevant question was whether (under Part 3) the Canadian power was valid according to Ontario law, assuming JMK had been habitually resident there at the point of granting the power’. He states that an application can be made under rule 23.6 Court of Protection Rules 2017 in any case where there is doubt as to the basis which the Attorney under a foreign power is operating.

However, the judgment does give clarification to the term ‘protective measure’.

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