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People are living increasingly international lives. It is easy to forget to account for this when estate planning, particularly when making provision in the event that you lose capacity to make decisions for yourself. However, provisions for the management of property and affairs and making decisions about care and welfare made in one country or jurisdiction may well have no effect in another country or jurisdiction, which can cause very significant problems.
Can the Court of Protection help?
The Court of Protection is the Court in England and Wales that makes decisions on behalf of people that lack capacity to make those decisions for themselves. It also governs the behaviour of attorneys appointed under Lasting and Enduring Powers of Attorney, appoints Deputies, and makes decisions about the validity of Lasting and Enduring Powers of Attorney. Broadly, the Court only has authority to make a decision about a person, their power of attorney or their assets if the person or their assets are in England or Wales (Paragraph 7, Sch 3, Mental Capacity Act (MCA) 2005).
A person is an adult for international purposes if they are 16+ and who ‘as a result of an impairment or insufficiency of his personal faculties, cannot protect his interests (Paragraph 4, Sch 3, MCA 2005) .
It is worth noting that if a person falls within the jurisdiction of the Court of Protection, then the full range of powers that are usually available to the Court of Protection under ss.15-16 MCA 2005 are available.
Habitual residence
For legal purposes, a person’s habitual residence is somewhat fluid. It should not be confused with concepts such as domicile, citizenship or residence from a taxation perspective. ‘Habitual residence’ has been defined in case law as ‘a question of fact to be determined in the individual circumstances of the case’ (Re MN [2010] EWHC 1926 (Fam)). Therefore, if a decision is made to move person to another country when they lack capacity to consent to the move, provided the move is lawful, it will result a change in their habitual residence.
Where the habitual residence of a person is changed in good faith by a person with authority to do so, it may still be lawful, even if it has not been sanctioned by the Court of Protection or there is conflict about the move. This was confirmed in the case Re PO, where PO was moved from her home in Worcestershire to Scotland by one child against the wishes of the other three children (Re PO [2013] EWHC 3932 (COP)).
What can be done if you want a foreign Order to have effect in England and Wales?
A foreign protective measure is defined as:
‘any measure directed to the protection of the person or property of an adult who for these purposes is any person over 16 who, as a result of an impairment or insufficiency of his personal faculties, cannot protect their interests’ (Para 27.8, Chapter 27, Court of Protection Handbook, First edition, Legal Action Group).
It is broadly an Order made by a Court to protect a person as defined above, but there is some academic discussion that it could be broader than this.
For a foreign protective measure to be able to be enforced in England and Wales, an application for enforcement of the same will need to be made to the Court of Protection. This is not the case for those made in Scotland, for which special provision has been made. Therefore, if you seek to rely on a foreign protective measure to take action, an application to the Court of Protection for enforcement of the same will be needed, in accordance with Rule 23.4 Court of Protection Rules 2017 (COPR). Whilst this can feel cumbersome, the major advantage of this course of action is that no capacity evidence is required, and no best interests decision is being made. It is an administrative application to the Court of Protection and can be dealt with relatively speedily.
What can be done if you want a foreign power of attorney to have effect in England and Wales?
Conversely, foreign powers or attorney or powers of representation should technically be recognised in England and Wales without additional authorities being issued. However, this is simply not the case on the ground, and the Court of Protection has made provision for a process to apply for an Order of the Court of Protection to confirm the validity of the power of attorney in hand.
In the matter Various applications concerning foreign representative powers, Re [2019] EWCOP 52 (08 November 2019) (bailii.org), Her Honour Judge Hilder set out the options available to a person if they require recognition of a foreign protective measure, where it is not being recognised automatically by banks, financial institutions and other relevant bodies.
- The first, and most standard, approach is to ask the Court of Protection for a declaration that the attorney or representative will be acting lawfully when exercising their authority under the power in England and Wales (s.15(1)(c) MCA 2005 and COPR 23.6). As with an application for a recognition of a foreign protective measure, the major advantage of this option is that no capacity evidence is required, and no best interests decision is being made. It is an administrative application and can be dealt with relatively speedily.
- A more involved alternative is to ask the Court of Protection to appoint the attorney or representative as a Deputy for Property and Financial affairs in England and Wales over all, or part of, the incapable person’s estate. This is a more involved application that will require mental capacity evidence, and the existence of a valid foreign protective measure will be a relevant consideration for the Court.
- The last resort is to seek a foreign protective measure in the country in which the incapable person is habitually resident, and seek recognition of that Order in accordance with COPR 23.4.
From a practical standpoint, any application will require an officially authenticated (and translated, where necessary) foreign protective measure or power of attorney / representation. All will also require a form COP1 application form and a form COP24 witness statement.
What can be done if you want an Order or power of attorney made in England and Wales to have effect abroad?
The simple answer is that it depends on what the requirements of the other country are. A good starting point is to ask the institution or company that you are hoping to recognise the Order or power what they need to satisfy their requirements, and work to that. A notarised (and translated if required) Order or power of attorney is often a very helpful starting point. Seeking advice from a local legal advisor is also strongly advisable.
Statutory Wills
If a person lacks capacity to make a will for themselves, and the Court of Protection make a Statutory Will on their behalf, it is important to note that the Statutory Will shall have no effect over:
- Immovable property outside England and Wales, or
- Any other property or matter if:
- P is domiciled outside of England and Wales when it is executed, and
- Under the law of P’s domicile any question of P’s testamentary capacity would fall to be determined in accordance with the law of a place outside of England and Wales
If a person has immovable property outside of England and Wales, or is domiciled outside of England and Wales at the time that the Statutory Will is executed then additional arrangements will need to be made in relation to their estate.
The future?
England and Wales remain resolutely on the fringes of initiatives to support international co-operation and recognition of powers of attorney and Orders. The Hague Convention on the International Protection of Adults came into force in 2009, and allows for seamless mutual recognition of powers of attorney and Orders for the nine states that have ratified it. England and Wales have signed it, but not ratified it, except in relation to Scotland. On 31 May 2023, the European Commission presented a proposal for a Regulation will introduce interconnected national registers of protection measure, and a European certificate for attorneys, so that they can establish their authority in other states. It is hoped that England and Wales will engage in measures to mirror such practices.
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