Various applications concerning foreign representative powers, Re

IMPORTANT NOTICE

This judgment is covered by the terms of an order made pursuant to Practice Direction 4C — Transparency. It may be published on condition that the anonymity of the incapacitated person and members of their families must be strictly preserved. Failure to comply with that condition may warrant punishment as a contempt of court.

Neutral Citation Number:[2019] EWCOP52

Case Nos.: 13257265, 1236379T, 13303939, 13285001 & 13286102

COURT OF PROTECTION

rvmNTAL CAPACITY ACT 2005

IN THE MATTERS OF GED, BMA, TCM, AB and A.JC

First Avenue House 42-49 High Holbom, London, WCIV 6NP

Date: 8^th November 2019

Before •

Her Honour Judge Hilder

IN THE MATTER OF

Various applications concerning foreign representative powers

Hearmg• : 7^th June 2019

Mr. David Rees QC (instmcted by the Official Solicitor), acting as Advocate to the Court

Three attomeys/family members of protected persons attended in person

The hearing was conducted in public subject to transparency orders made on 22^nd January 2019.

The judgment was handed down by e-mail on November 2019. It consists of 32 pages, and has been signed and dated by the judge.

The numbers in square brackets and bold typeface refer to pages of the hearing b "d

A. INTRODUCTION

"The Attorney-General's memorandum, 19^th December 2001, [2002] Fam Law 229 notes:

"It is important to bear in mind that an advocate to the court represents no one. His or herfunction is to give the court such assistance as he or she is able on the relevant law and its application to thefacts of the case.

B. ISSUES FOR DETERNHNATION

¹ Re Lawson, Mottram & Hopton [2019] EWCOP 22 at paragraph 4

c. Tl-m FIVE CASES

a certificate of incapability is issued by designated officials within the health authorities (ie outside the court process). If a certificate is issued, usually at the request of the Public Guardian and Trustee ('PGT'), the PGT becomes committee of estate. Certificates are not issued for personal and healthcare decisions."

² Frimston et al OUP (2015)

"for the Hlv1RC, so that [AB 'sl UK pension (widow's pension from Rank Xerox) does not get taxed both in the UK and then again in New Zealand."

7.3 GB has filed a statement [112] in which she explains that AB moved to New Zealand as a permanent resident in November 2004. She describes AB's memory as "greatly impaired, and she no longer recognises me" [113]. She informs the Court that the cost of AB ' s residential care is met from her own funds. In April 2018 AB received a cheque from HMRC "as repayment for the tax paid in the UK for the previous 3 years" but the following month GB received a letter from Hlv1RC advising her that "they had accepted my proof of Enduring P of A for AB BY MISTAKE, as apparently it is not a valid document in the UK."

7.4 A certified copy of AB's Enduring Power of Attomey [116] has been provided. The substantive part of the document consists of two paragraphs. Paragraph 1 appoints attomeys "with general authority to act on my behalf in relation to the whole of my property; and paragraph 2 states that "I intend that the authority in paragraph 1 of this instrument will not be revoked if I become mentally incapable." It is ostensibly signed by AB and the attorneys, each in the presence of the same witness. The document makes no reference to AB's capacity at the time of signing, and bears no seal or other official mark. There are four paragraphs of "Notes" at the end of the form which provide some explanation of the effect of the document and matters which the donor "should" consider or do.

GB has also provided various documents from HMRC and a letter from the administrator of AB's care facility [121] which sets out that type of care provided is "Dementia level" and the level of care is "Very high."

"I AUTHORIZE my attorney(s) for property to do on my behalf anything in respect of property that I could do if capable of managing property, except make a will, subject to the law and to any conditions or restrictions contained in this document. I confirm that he/she may do so even if I am mentally incapable."

D. THE LEGAL FRAMEWORK

The Hague Convention and Mental Capacity Act 2005 Schedule 3

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

(b)Council Regulation (EC) No. 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility. (Footnote: ³)

In other respects, the definition in Schedule 3 follows the terms of the Convention. Notably, it does not refer to a person who lacks capacity within the meaning of the Act but to a person who "as a result of an impairment or insufficiency of his personal faculties, cannot protect his interests." There is room for debate as to whether this phraseology is intended to be wider than mental incapacity (Footnote: ⁴)but the Lagarde Report offered the following observation (Footnote: ⁵)at paragraphs 9 — 10:

"Paragraph 1 [of Article 1 of the 2000 Convention] defines the adults to which the Convention applies. These are naturally those who need protection but, to make this quite clear, the Commission purposefully avoided in this paragraph using juridical terns, such as 'incapable party' , which have different meanings depending on the law being considered. It was therefore judged preferable to keep to a factual description of the adult in need to protection. The text contains two factual elements. The first is that of 'impairment or insufficiency of [the] personal faculties' of the adult... The [second is that the] insufficiency or impairment of the personal faculties of the adult must be such that he or she is not 'in a position to protect [his or her] interests.' The second element in the definition must be understood broadly."

20. Full, original jurisdiction

20.1 The "full, original jurisdiction"9 of the Court of Protection is its (by now familiar) powers to make declarations and orders under sections 15 and 16 of the Act.

20.2 Paragraph 7(1) of Schedule 3 identifies the persons in respect of whom this full, original jurisdiction of the Court of Protection is exercisable:

⁸ See the decision of Moylan J in An English Local Authority v. SW [2014] EWCOP 43.

⁹ Re MN [2010] EWHC 1926 (Fam) per Hedley J at [20]

20.3 It follows that two different States may have concurrent jurisdiction over aspects of a person's life. Mr. Rees gives the example of a person habitually resident in Scotland but having property in England: both the Scottish and the English courts may be able to exercise jurisdiction over that property. (For clarity, 'property' here is given a wide definition under section 64 of the Act and includes assets such as bank accounts and possessions as well as land.)

20.4 Where there is concurrent jurisdiction, whether the Court of Protection should exercise its jurisdiction or choose not to falls to be determined according to the doctrine offbrum non conveniens and the principles laid down in Spiliada Maritime Corporation v. Cansulex Ltd; The Spiliada [1987] AC 460. An example of this can be seen in the decision of Sir James Munby P in Re O (Court ofProtection: Jurisdiction) [20141 Fam 197.)

20.5 Nonetheless, the possibility of conflict arises. If the Convention applied, Article 9 would supply an answer: it provides that a State exercising jurisdiction because the person in question has property there can only do so "to the extent that such measures are compatible with those taken by the State of habitual residence." Schedule 3 paragraph 7 contains no equivalent provision.

21. Recognition/Enforcement of foreign protective measures

21.1 Part 4 of Schedule 3 sets out additional powers to recognise and enforce foreign protective measures that relate to adults, inespective of any reciprocal arrangement.

21.2 The basic provisions are in mandatory terms:

(3)A measure to which a declaration under this paragraph relates is enforceable in England and Wales as if it were a measure of like effect taken by the court.

21.3 In the matter of Re MN [2010] EWHC 1926 (Fam) Hedley J considered the approach of the court in circumstances where an application was made for recognition of an order made by a Californian court. He described Part 4 of Schedule 3 as of "summary and mandatory nature" (paragraph 28) and then explained (at paragraph 31):

"In the end, I have concluded that a decision to recognise under para 19(1) or to enforce under para 22(2) is not a decision governed by the best interests of MN My reasons are really threefold. First, I do not think that a decision to recognise or enforce can be properly described as a decision 'for and on behalf of MN'. She is clearly affected by the decision but it is a decision in respect of an order and not a person. Secondly, this rather technical reason is justified as reflecting the policy of the Schedule and of Part 4 namely ensuring that persons who lack capacity have their best interests and their affairs dealt with in the country of habitual residence; to decide otherwise would be to defeat that purpose. Thirdly, best interests in the implementation of an order clearly are relevant and are dealt with by para 12 which would otherwise not really be necessary.'

21.4 Paragraph 19 of Schedule 3 goes on to provide for circumstances in which the Court of Protection may disapply the mandatory provisions, but those circumstances are limited:

21.5 Disapplication of the recognition provisions was considered in Health & Safety Executive ofIreland v. PA & Ors [20151 EWCOP 38, where an order had been made by the High Court of Ireland to move an incapacitous person from hospital in Ireland to a specialist placement in England where the care alTangements would amount to a deprivation of liberty. Baker J (as he then was) said at paragraphs 36 - 37:

"36. This is an area where the principles of comity and co-operation between courts of different countries are of particular importance in the interests of the individual concerned. The court asked to recognise a foreign order should work with the grain of that order, rather than raise procedural hurdles which may delay or impede the implementation of the order in a way that may cause harm to the interests of the individual. If the court to which the application for recognition is made has concerns as to whether the adult was properly heard before the court of origin, it should as a first step raise those concerns promptly with the court of origin, rather than simply refuse recognition.

37. The putpose of Sch 3 is to facilitate the recognition and enforcement of protective measures for the benefit of vulnerable adults. The court to which such an application is made must ensure that the limited review required by Sch 3 goes no further than the terms of the Schedule require and, in panicular, does not trespass into the reconsideration of the merits of the order which are entirely a matter for the court of origin

He further noted, at paragraph 94, that:

. . .there is likely to be a wide variety in the decisions made under foreign laws that are put forward for recognition under Schedule 3. As the Ministry of Justice has observed, inevitably there may be concerns about some of the foreign jurisdictions from which orders might come. But as the Ministry also observes, taking account of such concerns is surely the pumose of the public policy review. Although no wide-ranging review as to the merits of the foreign measure is either necessary or appropriate, a limited review will always be required as indicated by the European court in Pellegrini. That will be sufficient to identify any cases where the content and the form of the foreign measure, and the process by which it was taken, are objectionable. It also seems to me that the circumstances in which Sch 3 is likely to be invoked, and the number of countries whose orders are presented for recognition, are likely to be limited. In oral submissions, Mr Rees pointed out that, in theory, the court could be faced with applications to recognise and enforce orders from any country in the world, including, for example, Nonh Korea or Iran. That may be right in theory, but common sense suggests it is, to say the least, unlikely in practice, at least in the foreseeable future. And if such orders were to be presented for recognition, the public policy review would surely lead swiftly to identifying grounds on which recognition would be refused. It is much more likely that the orders presented for recognition will be those of foreign countries whose legal systems, laws and procedures are closely aligned to our own. Concems of this nature can be addressed by admitting evidence of the process by which the foreign protective measures were made and general evidence relating to the legal system of the state that made the order."

21.6 Mr. Rees draws from this authority the proposition that "the Court of Protection will need to conduct a limited review to satisfy itself that the foreign proceedings fulfilled the rights guaranteed by Alticles 5, 6 and 8 of the European Convention on Human Rights."

22. Private mandates

22.1 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." Article 15 specifies the applicable law according to the nature of the question under consideration, there being two options:

Article 16

Where powers of representation referred to in Article 15 are not exercised in a manner sufficient to guarantee the protection of the person or property of the adult, they may be withdrawn or modified by measures taken by an authority having jurisdiction under the Convention. Where such powers of representation are withdrawn or modified, the law referred to in Article 15 should be taken into consideration to the extent possible.

¹⁰ Although by Rule 23.2(2) the domestic instruments are expressly excluded from the scope of Schedule 3.

22.9 The cun•ent domestic provisions mirror this approach at paragraph 14 of Schedule 3:

22.10 The interplay between subparagraphs (1) and (2) is not spelled out. However, in order to be consistent with paragraph 13(5), in my judgment the two subparagraphs 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.

22.11 The wording of paragraph 14(1) suggests that the jurisdiction to disapply or modify a power does not arise until the lasting power has actually been exercised in an insufficiently protective manner. However, in oral submissions Mr Rees agreed that it would "offend common sense and the protective nature of the court" if the court were made aware of an intention so to use the power, and stood by waiting for it to happen. The present tense in the paragraph must accommodate the court's ability to disapply or modify the power so that, when it is exercised, it is exercised in an appropriately protective manner.

22.12 Paragraphs 17 and 18 of Schedule 3 together provide "longstop" provisions which avoid the court having to give effect to foreign powers of attorney if it would be repugnant to do so:

Mandatory rules

17 Where the court is entitled to exercise jurisdiction under this Schedule, the mandatory provisions of the law of England and Wales apply, regardless of any system of law which would otherwise apply in relation to the matter.

Public policy

18. Nothing in this Part of this Schedule requires or enables the application in England and Wales of a provision of the law in another country it is applications would be manifestly contrary to public policy.

22.14 Paragraph 15 of Schedule 3 provides the attractive possibility of a domestic register of foreign powers:

15. Regulations may provide for Schedule 1 (lasting powers of attorney: formalities) to apply with modifications in relation to a lasting power which comes within paragraph

However to date no regulations have been made pursuant to paragraph 15, so it is not presently possible to register a foreign power of attorney with the Office of the Public Guardian of England and Wales.

Procedure for making a Schedule 3 application

declarations as to the authority of the donee of a lasting power, a certified copy of the lasting power (and where necessary a certified translation thereof).

23.3 The Practice Direction also makes provision for how the coun progresses a Schedule 3 application after issue:

E. DISCUSSION

In practice, this approach is generally not found to be effective because, as the cases of BMA, AB and AJC each demonstrate, financial institutions in England and Wales usually seek some domestic confirmation of authority.

In order to grant recognition, the Court of Protection would require evidence satisfying the requirements of PD23 paragraph 12(1).

None of the five cases before me involve such an application. Given that powers of attorney are typically granted with a view to avoiding any need for court proceedings, it is not difficult to see why this approach — which requires proceedings in two courts — is not commonly favoured.

There is some suggestion from commentators that this should be R's application of choice. 1 1

In order to grant such a declaration, the Coun of Protection would need to determine, in accordance with paragraph 13 of Schedule 3:

That determination would require evidence of the relevant foreign law to be filed.

If a declaration were to be made as sought, it should make clear and express the requirement (from paragraph 13(5) of Schedule 3) that the exercise of the power in England and Wales must comply with the law of England and Wales; ie must be in

¹¹ See the Mental Capacity Report of 39 Essex Chambers for April 2018, page 27.

accordance with the principles of section 1 of the Act and any restrictions in the authorities which may be given to attorneys.

Mr. Rees has posed a question as to whether there is a "threshold" for the exercise of the court's jurisdiction to make this type of declaration: is it exercisable in respect of any foreign power of attorney, or must the donor be an "adult" within the meaning of Schedule 3 paragraph 4, or must the donor lack capacity within the meaning of section 2 of the Act? The question is significant because, if there is no threshold of capacity within the meaning of section 2 of the Act, the Court may be making declarations in respect of persons who would otherwise be outside its jurisdiction.

Mr. Rees suggests that for the court's jurisdiction to make this type of declaration to arise, the donor of the power must be an "adult" within the meaning of Schedule 3 paragraph 4. I agree. That seems to have been the approach taken by Baker J in HSE v. PA & Ors [2015] EWCOP 38 at paragraph 44, and is consistent with the 'scope of jurisdiction' provisions on paragraph 7(1) of Schedule 3 - "The court may exercise its functions under this Act (in sofar as it cannot otherwise do so) in relation to" "adults" in various circumstances.

24.4. Orders under s16 of the Act: "full ori inal •urisdiction.

None of the five cases before me involve an application for the court to exercise its full, original jurisdiction but it is an ordinary part of that jurisdiction — pursuant to section 16(6) — that the court may 'make the order, give the directions or make the appointment on such terms as it considers are in P 's best interests, even though no application is before the court for an order, directions or an appointment on those terms.

There are two ways in which the exercise of the full, original jurisdiction may assist:

In either case, the court would need evidence that the adult lacked relevant capacity within the meaning of section 2 of the Act, and to be satisfied that the appointment/ authority to transfer is in the best interests of the adult.

This approach raises the question of whether the existence of an apparently valid and operable foreign power of attorney changes the situation: in such circumstances, should the court exercise its jurisdiction?

The Convention seems to expect that a foreign power of attorney would be allowed to take effect, and the court of the State where the property is situated would intervene only if satisfied that the power is not being exercised in a manner sufficient to guarantee to protection of the person or property of the donor ^l . However, this is a point where the Convention and Schedule 3 diverge (see paragraph 20.5 above):

Mr Rees suggests that the existence of a valid foreign power of attorney is a material consideration when considering what is in the best interests of the adult in question, but it is not a bar to the exercise of the full, original jurisdiction of the court. I agree.

24.5. R ma a I for orders of reco ition of the ower of re resentation as a ' rotective measure. '

This seems to be the application intended by the applicants in all of the five cases before me. The case ofBMA 1236379T concerns a power of representation held by the Public Guardian and Ttustee of British Colombia by virtue of a Certificate of Incapability. The other four cases concern private mandates of various types. To determine the applications, it is necessary to consider further what constitutes a 'protective measure' for the purposes of the recognition provisions of Schedule 3 paragraph19.

. . . reference to 'protective measures' in Schedule 3 is intended, and generally understood, to refer to amangements 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 coult 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.'

¹² See Lagarde Report paragraph 108

"As with Hague 34, the description given in Article 3 of Protective Measures is deliberately wide so as to seek to avoid unnecessary arguments as to the precise classification of a particular measure of protection. The scope of the measures envisaged by Article 3 is very wide-ranging, encompassing measures along the spectrum from assistance with the acts of daily living to compulsory placement in a foreign psychiatric institution.

Further light upon the width of the measures falling within the scope of Hague 35 can be shed — we suggest — by the Practical Handbook to Hague 34, in which the Permanent Bureau note (by reference to Alticle 3 of that Convention, in which a similar list of measures is set out) that:

It should be noted that the examples given in Art. 3 are not rigid categories: measures of protection may well encompass one or more of the examples given.. .. In addition, depending on the measures available in a Contracting State's domestic law, 'measures of protection' will not necessarily emanate from a formal judicial or administrative tribunal: eg, an official of a public authority, such as a police officer or social worker, may be empowered under domestic law to take a 'measure of protection' in respect of a child, usually in a situation of urgency. If the function of the measure is to protect the child, unless it falls within a category provided for in Art. 4, it would appear to fall within the material scope of the Convention.

It is suggested that a similar functional approach would apply to identifying whether a measure constitutes a Protective Measure falling within the scope of Hague 35."

¹³ See paragraphs 13(2)(b) and 24 of "The 2000 Hague Convention on the International Protection of Adults Five years On", Alexander Ruck Keene, February 2014

The authors of The International Protection ofAdults restated this at paragraph

9.11 - 9.13.

"146. The first version of this report, which was based on a reading of the Convention text, set forth that this confirmation is not a measure of protection within the meaning of the Convention. However, some delegations have since asserted that this analysis is not one which, according to them, flows from the discussion, difficult as it was. According to this view, a confirmation could constitute a measure of protection within the meaning of Alticle 3 and it could only be given by the competent authority under the Convention...

This 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.

"There are clearly arguments both ways it is clearly arguable that private mandates such as powers of attorney fall entirely outside the regime of 'protective measures' whether or not they are subject to registration. [Or].. .the registration of a power of attorney could be said to involve the designation of a person having charge of a person's property (see Sch 3 para 5(1)(d)) and as such the court may take the view that such powers could be capable of being protective measures.

". . .even if registration or confirmation of a power of attorney is potentially capable of amounting to a protective measure, the measure must still be directed to the protection of the person or property of an 'adult.' As such it is suggested that registration or confirmation could only ever render a power of attorney a protective measure where the registration process is directly related to the adult's loss of capacity (and perhaps involves a formal consideration of this by the coun or tribunal undertaking the registration.) Where the confirmation or registration process is not directly related to the loss of capacity (such as happens with an English LPA), it is suggested that this would not be sufficient to transform the power into a 'protective measure. "'

F. DETERN{INATION OF THE INDIVIDUAL CASES

35. BMA 1236379T

35.1. The Public Guardian and Trustee of British Colombia seeks 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.

35.2. The issue of the Certificate of Incompatibility in respect of BMA appears not to have been part of a formal court process but to have been the responsibility of designated officials within health authorities. The effect of the Certificate in British Colombia appears to satisfy the functions described in Schedule 3 paragraph 5(1)(a), (b), (c), (d) and (f). On the functional understanding of the term (as set out in paragraph 27 above), I am satisfied that the Certificate is a 'protective measure.

35.3. In order to recognise the Certificate under Schedule 3 Part 4, I need first to be satisfied that BMA is an 'adult' within the meaning of Schedule 3, and was habitually resident in British Colombia when it was issued. Both of these facts are apparent from the COP24 statement filed by Mr. Brettell.

35.4. Further, I need to be 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). There is nothing in the evidence currently available to suggest that the Certificate was issued as a matter of urgency, but also nothing to suggest that BMA was given an opportunity to be heard. Furåer information is required for the recognition application to be determined.

35.5. However, there is an alternative method of addressing what appears to be the purpose of the application. In practical terms, the application seeks to put funds standing to the credit of BMA in an English bank account under the same management as any assets she has in her country of habitual residence. This could be achieved by making a 'oneoff' order under the full, original jurisdiction of the Court of Protection (as set out in paragraph 24.4 above).

35.6. On the basis of the COP3 assessment filed with the application, I am satisfied that BMA lacks capacity to manage her property and affairs and in panicular to alTange for the transfer of her funds to her place of habitual residence.

35.7. lam satisfied that, by definition, the Public Guardian and Trustee of British Colombia is a fit and proper person to take charge of BMA's funds.

35.8. The extent of funds in question is relatively modest but it would manifestly be in BMA's interests to have such funds used for her benefit rather than remaining inaccessible. There is no suggestion that BMA has any further assets in England and Wales which may require further orders. BMA's sisters and nephew have been informed of the application and have raised no objection. I am satisfied that it is in the best interests of BMA to make a one-off order for transfer of her funds.

35.9. The order will authorise the Public Guardian and Trustee of British Colombia to transfer funds held to the credit of BMA with National Westminster Bank to her account in British Colombia; and, for the avoidance of any institutional doubts, will further authorise the National Westminster Bank to act upon the instructions of the Public Guardian and Trustee of British Colombia to arrange such transfer.

35.10. I have considered Rule 1.2 of the Court of Protection Rules 2017 and am satisfied that BMA's interests and position are properly secured, as is the general approach in most non-contentious property and affairs applications, without making any further direction for her participation in these proceedings.

36. AB 13285001

36.1. This application seeks recognition of an Enduring Power of Attorney granted in New Zealand. It is clear from the information filed with the application that AB has been habitually resident in New Zealand since 1989.

36.2. The authority granted by the power is expressed to continue notwithstanding supervening incapacity of AB. Therefore being "of like effect" to lasting powers and enduring powers within the meaning of the Act, I am satisfied that the power granted by AB falls within the definition of paragraph 13(6) of Schedule 3.

36.3. There is no suggestion of any form of registration or confirmation of the power with any type of official body in New Zealand. I am therefore satisfied that there is no basis on which it could be considered a "protective measure" within the meaning of Schedule 3 paragraph 5; and therefore no basis for the recognition which is sought.

36.4. However, the pumose of the application appears 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.

36.5. There are two ways in which this purpose could possibly be achieved.

36.6. Firstly, the court could treat the application as one seeking a declaration under s15(1) of the Act that GB will be acting lawfully in exercise of the Enduring Power of Attorney in respect of AB's property and affairs in England and Wales.

36.7. In order to make such a declaration, the court would need to be satisfied that AB is an

'adult' and was habitually resident in New Zealand at the time of granting the power. The information filed by GB is sufficient for these purposes. However the court would also need to be satisfied that AB's Enduring Power is a valid one under New Zealand law (that she had capacity to grant it, that it complies with any formalities required, that it remains valid, and whether there are any restrictions imposed on the powers of an attorney). Further evidence would be required to address these matters.

36.8. Altematively, the court could make a 'one-off' order under section 16 of the Act, authorising GB to manage AB's English tax affairs. (It appears that there is no issue with actual payment of the pension. The pension administrator has raised no issues and GB is already receiving the funds on behalf of AB.)

36.9. In order to make such an order, I would need to be satisfied that AB lacks capacity within the meaning of section 2 of the Act to manage her affairs with HMRC, and that the order would be in the best interests of AB. No COP3 assessment has been filed but, from the combination of GB's statement and the letter from the administrator of the care facility where AB lives, I am satisfied that AB presently lacks capacity to manage her affairs with HMRC. I am further satisfied that it is in her best interests that someone is authorised to manage those affairs on her behalf, and that the person whose authority is accepted in her place of habitual residence, whom she herself chose to manage her affairs (her daughter, whom she moved half way round the world to live near) is the appropriate person to be so authorised.

36.10. I have considered Rule 1.2 of the Court of Protection Rules 2017 and am satisfied that AB's interests and position are properly secured, as is the general approach in most non-contentious property and affairs applications, without making any further direction for her panicipation in these proceedings.

37. GED 13257265

37.1. The application is brought by GED's husband ED as attorney under of a Continuing Power of Attorney of Ontario.

37.2. There is no suggestion that the power has been the subject of any form of registration or confirmation. I am therefore satisfied that there is no basis on which it could be considered a "protective measure" within the meaning of Schedule 3 paragraph 5; and therefore no basis for it to be recognised pursuant to Schedule 3 paragraph 19.

37.3. The purpose of the application appears to be 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.

37.4. There are two ways in which this purpose could possibly be achieved.

37.5. Firstly, the coult could treat the application as one seeking a declaration under s15(l) of the Act that ED will be acting lawfully in exercise of the Continuing Power of Attorney in respect of GED's property and affairs in England and Wales.

37.6. In order to make such a declaration, the court would need to be satisfied that GED is an 'adult', was habitually resident in Ontario at the time of granting the power and had capacity to grant it. Additionally the court would need to be satisfied that GED's Continuing Power complied with formalities required under Ontario law, that it remains valid, that it is 'of like effect' within the meaning of Schedule 3 paragraph 13(6), and whether there are any restrictions imposed on the powers of an attorney. The information presently filed does not address these matters and further evidence would be required.

37.7. Alternatively, the court could make a 'one-off' order under section 16 of the Act, authorising ED to transfer the balance of GED's NatWest account to her Ontario account.

37.8. In order to make such an order, I would need to be satisfied that GED lacks capacity within the meaning of section 2 of the Act to transfer her funds from NatWest to Ontario, and that the order would be in the best interests of GED.

37.9. No COP3 assessment or other evidence of GED' s present capacity has been filed. The documents presently filed offer no explanation as to where GED is habitually resident, or how she came to have a bank account in England and why it is in her best interests to transfer the funds held there to Ontario, or whether she has any other assets in England and Wales, or whether the Continuing Power has been accepted as effective in Ontario. Details (including whether the account is in GED ' s name) are not provided of neither the NatWest account or the Your Credit Union account. Further evidence to address all these matters is required.

37.10. Choosing between the options (either s15 declaration or s16 order) comes down to a matter of proportionality pursuant to Rule 1.1(1) of the Court of Protection Rules 2017. The s15 declaration option would require expert evidence; the s 16 order option could be addressed by the filing of a COP3 assessment, a COP24 statement (with documentary exhibits as appropriate) by ED and confirmation of notification of GED and the other attomeys appointed under the Continuing Power. On that basis, the s 16 option is in my judgment the more appropriate.

37.11. Taking the s16 option, I have considered Rule 1.2 of the Court of Protection Rules 2017 and am satisfied that AB's interests and position are properly secured, as is the general approach in most non-contentious property and affairs applications, without making any further direction for her participation in these proceedings.

37.12. I will direct that ED notifies GED and his fellow attorneys of his application forthwith and files by 20^d1 December 2019:

37.13. In the event that the funher documents are not filed as directed, the application will on 23^rd December 2019 stand automatically dismissed without further order.

13(6), or that it is a 'protective measure' within the meaning of Schedule 3 paragraph 5. So, there is no basis for the recognition sought.

39. TCM 13303939

39.1. This application seeks recognition of a Lasting Power of Attorney registered with the Office of the Public Guardian of Singapore.

39.2. I am satisfied from the medical evidence filed that TCM is an 'adult' within the meaning of Schedule 3 paragraph 4.

39.3. It is clear from the prescribed information on the fom used to execute the power that it is "of like effect" within the meaning of Schedule 3 paragraph 13(6).

39.4. Although completion of a process of registration of the power is a pre-condition of it taking effect, that registration is not linked to a lack of capacity on the part of TCM. Rather, it is linked to the granting of the power — the requirement is that the power is registered within 6 months of the date on which the donor signs it. Therefore I am not satisfied that TCM's Lasting Power of Attorney constitutes a 'protective measure' within the meaning of Schedule 3 paragraph 5.

39.5. The purpose of the application appears to be to enable TCM's wife and daughter to make decisions on behalf of TCM in respect of his welfare (also his property and affairs but since he does not have any in England and Wales, this is less of a driving factor.)

39.6. It is necessary to consider whether there are altemative means of meeting the purpose of the application.

39.7. Firstly, the possibility of a declaration pursuant to section 15 of the Act, that the attorneys will be acting lawfully when exercising authority under the power: there is a difficulty with meeting the requirements of Schedule 3. The evidence is that, at the time of granting the power, TCM was habitually resident in Singapore. The power is therefore not within the requirements of Schedule 3 paragraph 13(1). However, the evidence also indicates that England was not 'a connected country': at the time of granting the power TCM was not a UK national, he was not habitually resident in England and Wales, and he had no property in England and Wales. Moreover, TCM has given no written specification that the law of England and Wales should apply. So the power is not within the requirements of Schedule 3 paragraph 13(2) either. It falls into the lacuna identified at paragraph 22.5 above: Schedule 3 paragraph 13 makes no provision for the law applicable to the "existence, extent, modification or extinction" of this power.

39.8. It has been suggested that "logic, and fidelity to the principles of the Convention point to the applicable law in these circumstances (in respect of "existence, extent, modification or extinction" of the power) being the law of the state of habitual residence at the time of granting the power, ie Singapore. I agree. That approach also seems to me most closely consistent with the approach taken in Schedule 3 paragraph 13(2).

39.9. The information presently before the court is sufficient for me to be satisfied that TCM's power complies with the necessary formalities under Singapore law, is 'of like effect' within the meaning of Schedule 3 paragraph 13(6), remains valid, and is not subject to any relevant restrictions on the powers of the attorney.

39.10. More straightforwardly, 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. Paragraph 14(1) of Schedule 3 comes into play. (On a strict reading of paragraph 14(2), that subparagraph does not. Any respect in which the law of Singapore is applicable to TCM's power is not "in accordance with this Part of the

¹⁴ See paragraph 38 of "The 2000 Hague Convention on the International Protection of Adults Five years On", Alexander Ruck Keene, February 2014

Schedule" but because of the approach I have taken to a lacuna in that Part of the Schedule.)

39.11. The division of the proceeds of sale of TCM's house between his children may have been completely proper within the terms of the power when exercised in Singapore but, by the principles and provisions of the Act, it would almost certainly amount to gifting beyond the authority of an attorney and therefore an exercise of the power "not.. .sufficient to guarantee the protection of the person or property of the donor" as provided in Schedule 3 paragraph 14(1). In my judgment, if a section 15 declaration is to be made in respect of TCM's power, a modification is required to limit the power of gifting by the attomeys to the limits set out in section 12 of the Act.

39.12. I am not aware of any past exercise of the power in respect of welfare decisions such as to cause concern. However there is a divergence between the terms of the power and the provisions of the Act in respect of consent to life-sustaining treatment. TCM ticked the box to give his attomeys authority to give or refuse consent to the carrying out or continuation of treatment. There is no place on the form for making specific provision in respect of life-sustaining treatment. In contrast, section of the Act contemplates an attorney being authorised in the same terms of TOM's power but section 11 (8) provides that such authority does not extend to life-sustaining treatment "unless the instrument contains express provision to that effect."

39.13. In order to ensure that the exercise ofTCM'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, it is necessary in my judgment to modify the power so as to make clear specifically that it does not extend to giving or refusing consent to lifesustaining treatment. Funher, I consider it appropriate to make that part of any s 15 declaration, even acknowledging that there has to date been no suggestion that the power has actually been exercised outside those limitations. To wait for such a situation to arise before making such a modification would clearly be unworkable and probably ineffective.

39.14. If, contrary to the position set out in paragraph 39.10 above, Schedule 3 paragraph 14(2) does apply to the court's jurisdiction to modify TCM's power, I am 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 — as set out in paragraph 22.10 above. Alternatively, I am satisfied that they are justified on the basis of paragraphs 17 and 18 of Schedule 3.

39.15. The second possible option for addressing the purpose of the application would be for the coun to exercise its 'full, original jurisdiction,' on the basis that TCM is now habitually resident in England and Wales. Further evidence would need to be filed to satisfy the court that TCM lacks relevant capacity.

39.16. Given that TCM receives no income and has no assets here, it is not clear that a property and affairs deputyship order would assist.

39.17. The evidence is that TCM is presently well cared for within his family, with no issues or disputes arising. In detennining whether a welfare deputyship order would be in the best interests of TCM, the court would need to take into account the existence and extent of the power as a written statement of his wishes. However, if that is the only basis on which the legal framework of deputyship is being considered, and there is a more direct way of giving effect to TCM's own decisions, in my judgment it is preferable to use the more direct approach.

39.18. So, in conclusion, in so far as the application in respect of TCM seeks recognition of his power of attorney pursuant to Schedule 3 paragraph 19, the application is refused because the power is not a 'protective measure.' Instead, I shall make a declaration pursuant to section 15 of the Act that the attorneys will be acting lawfully when exercising authority under the power in England and Wales, subject to 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.

HHJ Hilder 8^th November 2019