Re Various applications concerning foreign representative powers



Judge: Senior Judge Hilder

Citation: [2019] EWCOP 52

Summary

In this case, Senior Judge Hilder has returned to the somewhat complex issues that arise where an attorney seeks to use a power of representation granted in a foreign jurisdiction.  She had previously considered these issues in Re JMK [2018] EWCOP 5, a decision which attracted a certain amount of comment.  In this case, concerning five separate powers, she had the benefit of the Official Solicitor as Advocate to the Court.   In each of the applications, the applicant was asking Court of Protection to make orders to give effect in England and Wales to representative powers originating in a foreign jurisdiction.

Senior Judge Hilder started by giving a useful overview of the provisions of Schedule 3 to the MCA 2005, and the way in which they implement (albeit with some differences) the provisions of the 2000 Hague Convention on the International Protection of Adults, notwithstanding the fact that the UK has not, in fact, ratified that Convention in respect of England & Wales.  Within that framework, Senior Judge Hilder noted, there were five options for the holder of a foreign power of representation (“R”) to ensure that they have necessary powers of management in relation to the property of an adult in England & Wales:

(1) R may simply rely on the power, using it directly to demonstrate their authority

Although this is, in principle, how Schedule 3 should operate (see paragraphs 13 and 14), Senior Judge Hilder noted that “[i] practice, this approach is generally not found to be effective because, as [three of the cases before her] each demonstrate, financial institutions in England and Wales usually seek some domestic confirmation of authority.”

(2) R may obtain an order from the country where the donor is habitually resident permitting him to manage the donor’s property (essentially the equivalent of a deputyship order); and then seek recognition of that order under Schedule 3 Part 4 / Rule 23.4.

As Senior Judge Hilder noted: “[g]iven 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.”

(3) R may seek a declaration under s15(1)(c) MCA 2005 and Rule 23.6 that he or she will be acting lawfully when exercising authority under the power in England and Wales.

As Senior Judge Hilder noted: “[t]here is some suggestion from commentators that this should be R’s application of choice.”  She then went on to note the requirements that would have to be satisfied before the Court of Protection could grant that declaration.  Importantly, she noted that:

  • Mr. Rees [on behalf of the Official Solicitor] 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 so far as it cannot otherwise do so) in relation to” “adults” in various circumstances.

(4) R may seek an order of the court under s.16 MCA 2005

Senior Judge Hilder noted that it would be possible for to court to make an order under s.16 even if an application asking it to do so was not formally before the court, and that

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

  • (a)      by making an order which appoints R as the adult’s deputy for property and affairs; or
  • (b)     where the adult’s property in England and Wales is limited and R is simply seeking to remit such property to the state where the adult is habitually resident, by making a “one-off” order authorising R to make the transfer.
  • 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.

If the court is considering making such an application, Senior Judge agreed with the submission of the Official Solicitor 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.

(5) R may apply for orders of recognition of the power of representation as a ‘protective measure.’

This appeared to be the application intended by the applicants in each of the five cases before the court.  This meant that Senior Judge Hilder had to consider further what constitutes a ‘protective measure’ for the purposes of the recognition provisions of Schedule 3 paragraph 19.  Whilst she noted that she was persuaded that she had been too narrow in her understanding of the position in Re JMK (in which she had held that a ‘protective measure’ could only be a measure made or approved by a court), she ultimately found that she did not have to decide the ‘interesting’ question of precisely when and under what circumstances a foreign power of representation would become a protective measure upon registration by an administrative body (such as the Office of the Public Guardian).   Senior Judge Hilder noted that:

  • If, when an appropriate application is made, the court were minded to take the view that a power of attorney can be transformed into a protective measure through a process of registration linked to loss of capacity, application of the recognition and enforcement provisions of Schedule 3 Part 4 still require that the circumstances of disapplication under paragraph 19 (3), (4) and (5) do not apply.   

Senior Judge Hilder then turned to consideration of the individual cases before her.   Perhaps the most important for wider purposes was that relating to TCM, seeking recognition of a Lasting Power of Attorney registered with the Office of the Public Guardian of Singapore.   The purpose of the application appeared 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 did not have any in England and Wales, this was less of a driving factor).  Senior Judge Hilder noted the:

  • 39.7 […] 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). (emphasis added)

On the facts of the case before her, Senior Judge Hilder declared under s.15(1)(c) that the attorneys would 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 s.12 MCA 2005 and that the authority to give or refuse consent to treatment did not extend to life-sustaining treatment to accord with s.11(8) MCA 2005, which sets out specific provisions in relation to such treatment which the Singaporean power did not mirror.

Commentary

That Senior Judge Hilder was required (for the second time, following Re JMK) to go through the exercise of considering how those acting under foreign powers can actually get institutions (in particular financial institutions) in England & Wales to accept their authority is rather depressing, given the clear wording of paragraph 13 of Schedule 3, which should mean that foreign powers valid on their own terms are automatically effective here.

It is particularly depressing given that, for these purposes, ‘foreign’ powers include those emanating from Scotland, although, in practice, banks and financial institutions do seem somewhat happier to accept those powers.  In due course, were the UK to ratify the 2000 Convention in respect of England & Wales, the provisions of Article 38 of the Convention would be available, enabling the authorities in another Hague state to issue a certificate to the person acting under the power of representation which would serve as proof of the matters contained within it.   The Government, though, has no plans at present to extend ratification to England & Wales (or Northern Ireland).

CategoryCOP jurisdiction and powers - International jurisdiction Date

Keywords


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