JMK, Re

The application before the Court is for an order to recognise a Canadian Power of Attorney pursuant to Schedule 3 of the Mental Capacity Act 2005. The issue for determination is whether such an instrument amounts to “a protective measure” for the purposes of Schedule 3.

The application was made by SH and PH (the daughter and son-in-law of JMK) on form COP1, dated 2^nd March 2017. PH filed a COP24 statement in support, which exhibited a certified copy of the Continuing Power of Attorney.

By order made (as a paper consideration) on 31^st August 2017, the application was dismissed. The order states at paragraph 2 that:

“The reason for [the dismissal] is that having regard to paragraphs 19 to 25 of Schedule 3 of the Mental Capacity Act 2005, the Continuing Power of Attorney cannot be considered as a protective measure. A protective measure is usually understood to mean an arrangement that has been approved or made by a foreign court which needs to be recognised in this country. The document in this case has not been approved through any court process. The only remedy open to the Applicant is to apply to be appointed deputy in this jurisdiction.”

By COP9 application dated 30^th October 2017 PH applied for reconsideration of the dismissal order. By order made on 4^th January 2018 that application was listed before me for attended hearing. PH was directed to file a position statement/skeleton argument “which sets out the basis on which he contends that a (Canadian) Power of Attorney is a protective measure within the meaning of section 5(1) of Schedule 3 of the Mental Capacity Act 2005.”

PH has filed a COP37 Skeleton Argument dated 25^th February 2018. Neither he nor SH has attended the hearing and so there have been no oral submissions.

JMK was born on 18^th April 1936 and is therefore now 80 years old. There is very little information about her life before the Court but it is apparent that she was married, that her husband died in August 2014, and that there were at least two children from the marriage.

On 8^th September 2014 JMK apparently signed a document headed “Continuing Power of Attorney for Property” by which she appointed SH and PH to be her attorneys with authority to act jointly and severally. At the top of the document appears the word “Ontario” and under the heading it is said that the instrument is “(Made in accordance with the Substitute Decisions Act, 1992).” There is nothing in the document which relates to the donor’s capacity either to execute the instrument or to manage her property and affairs for herself except that paragraph 4 confirms that the attorneys are authorised to act “even if I am mentally incapable.”

On 22^nd July 2015 JMK moved into DO Care Home in Canada. A letter has been filed from the Director of Care of the Care Home. It is dated 20^th October 2015 and states that:

“[JMK] requires assistance with her activities of daily living which is provided by 24 hour personal support workers and registered nursing care. Due to her lack of insight and poor judgment, [JMK] is considered an elopement risk therefore requires 24 hour security and which is why she resides in a secure home area. She is currently under the medical supervision of our Medical Director…and Nurse Practitioner… Her diagnoses include Dementia, depression, osteoporosis and hypertension.”

PH has filed a document dated 30^th October 2017, which is really a letter to the court. In it he says that “The managing of [JMK’s] affairs currently include a legal battle with one of her children who is in the process of suing his mother for funds he believes are his.” At section 3 of his COP37 skeleton argument PH refers to having “to fight a legal battle over [JMK’s] funds. The latter being settled in December 2017 and, on the recommendation of the PGT, in such as (sic) way that the law suit was ended but JMK’s funds were left nearly exhausted.”

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 –

(a)

The determination of incapacity and the institution of a protective regime,

(b)

Placing the adult under the protection of an appropriate authority,

(c)

Guardianship, curatorship or any corresponding system,

(d)

The designation and functions of a person having charge of the adult’s person or property, or representing or otherwise helping him,

(e)

Placing the adult in a place where protection can be provided,

(f)

Administering, conserving or disposing of the adult’s property,

(g)

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.”

Paragraph 20 provides that:

“(1)

An interested person may apply to the court for a declaration as to whether a protective measure taken under the law of a country other than England and Wales is to be registered in England and Wales.

(2)

No permission is required for an application to the court under this paragraph.”

SH and PH are unrepresented, and I have not had the benefit of legal submissions. The only authority on Schedule 3 which I have found is the decision of Hedley J in Re MN (Recognition & Enforcement of Foreign Protective Measures) [2010] EWHC 1926. That case concerned an order of a court of competent jurisdiction in California. Hedley J concluded that a decision to recognise under paragraph 19(1) or to enforce under paragraph 22(2) is not a decision governed by the best interests of the protected person. He reasoned that a decision to recognise or enforce cannot be properly described as a decision for and on behalf of the protected person: she is clearly affected by the decision but it is a decision in respect of an order and not a person.

I note that the niece in Re MN had been granted certain authority under the terms of an Advance Health Care Directive. The application however was to recognise orders of the Californian court. The opening sentence of the judgment identifies the issue as “whether, and, if so, according to what criteria, should this court recognise and enforce an order of a court of competent jurisdiction in California…”(emphasis added). Issues as to the construction of the Directive, the extent of the authority conferred by it and the validity of its exercise were all “of course” (Footnote: ¹) matters to be determined under Californian law. There is no suggestion of any issue as to recognition of the Directive.

In his skeleton argument PH

PH does not expressly address in his skeleton argument the reasoning explicitly identified in the dismissal order ie that “a protective measure is usually understood to mean an arrangement that has been approved or made by a foreign court.” I note however that, in an e-mail sent to court staff at 01.48 on 19^th July 2017 he states that:

I agree with the reasoning of the District Judge. It seems to me 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. It may not be spelled out explicitly but the language of paragraph 19(3) in particular confirms that intention and understanding: each of the circumstances in which the mandatory requirement can be disapplied clearly envisages court proceedings. I have not found any authority which casts doubt on that understanding. JMK’s Power of Attorney has been through no court process at all. It is not even subject to a system of registration. 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.

More widely, it seems to me that PH’s understanding of the Power of Attorney at the time when it was granted (as set out in paragraph 16(a) above) captures a more accurate understanding of the nature of the instrument executed by JMK. If validly executed, a Power of Attorney is better characterised as an exercise of autonomy (even if it provides for a time when the donor is no longer capable of autonomous decision-making) than as a “protective measure.”

The order made on 31^st August 2018 stands. It remains open to the Applicants to apply to be appointed as property and affairs deputies in this jurisdiction.