[post updated on 29 March with more detail as to the operation of ‘foreign’ powers of attorney]
Re JMK  EWCOP 5, HHJ Hilder, faced with two litigants in person, has taken an unfortunate wrong turn as regards the basis upon which ‘foreign’ (i.e. non English & Welsh) powers have effect in England and Wales.
Two litigants in persons (the daughter and son-in-law of the donor) sought recognition and enforcement of a Canadian “Continuing Power of Attorney for Property” as a “protective measure” pursuant to paragraph 19 of Schedule 3 to the MCA 2005. It is not entirely clear from the judgment why they did so, although there is mention of a family legal battle, presumably in Canada. It is likely that there must have been some property in England and Wales that the holders wanted to administer and it can perhaps be assumed that they were having difficulty doing so without a court order.
Although the judgment does not say where power was made, it notes that the power was headed “[m]ade in accordance with the Substitute Decisions Act 1992.” This suggests that the power was made in Ontario where, although it appears that this was not brought to the judge’s attention, a Continuing Power of Attorney for Property does not need to be registered before it takes effect, either with a court or with an administrative body the equivalent of the Office of the Public Guardian in either England & Wales or Scotland. There was no evidence of the donor’s capacity at the date the power was executed although there was evidence from the care home where she lived in Canada that she lacked capacity thereafter.
The two parties before SJ Hilder were unrepresented, and she noted that she did not have the benefit of legal submissions. The only authority that she found on Schedule 3 was the decision of Hedley J in Re MN (Recognition & Enforcement of Foreign Protective Measures)  EWHC 1926, concerning a protective measure in the form of an order made by a California court.
SJ Hilder, upholding (on reconsideration) the refusal of the District Judge to recognise and enforce the power of attorney as a protective measure, noted that:
17. […] 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.
18. 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 [“at the time of issuance, the POA was not a protective measure other than [JMK] was not used to managing household finances… we offered to help but, in order to do this properly, we needed her authority which was deemed to be a Power of Attorney”] 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.”
SJ Hilder concluded by noting that it remained open to the applicants to apply to be appointed as property and affairs deputies in this jurisdiction.
It is very unfortunate that SJ Hilder did not have benefit of legal submissions on this important issue, because she did not have her attention drawn to the fact that she was being asked the wrong question by the applicants, and that she should have been analysing the position not by reference to whether or not the power of attorney was a protective measure for purposes of Part 4 of Schedule 3, but rather by reference to the provisions of Part 3. As explained in more detail in a discussion paper I prepared some years ago here (paragraphs 31ff), and set out in an appendix to this post for ease of reference, the general rule is that powers of attorney which are valid according to the law of the habitual residence of the donor are directly effective in England & Wales.
It is irrelevant, therefore, whether or not ‘foreign’ powers are also capable of being protective measures for purposes of Part 4 of Schedule 3, which was the focus of SJ Hilder’s analysis. The question was whether the Ontario power was valid according to the terms of Ontario law (assuming that JMK had been habitually resident there at the point of granting the power.
I should perhaps also note, however, that whilst it is undoubtedly correct that a foreign power that has not been registered with an administrative body or a court cannot be considered a protective measure, the position is now more nuanced than it was at the time I drafted the note set out above in 2014. In a very unusual step that we reported upon in the October 2017 Mental Capacity Report, the Explanatory Report to the 2000 Hague Convention on the International Protection of Adults (which underpins Schedule 3 to the MCA 2005) was issued in a new and revised edition, available here. In addition to the correction of a few typos, the new and revised edition includes in particular a modification to paragraph 146 made by the Rapporteur, Professor Paul Lagarde relating to the confirmation of powers of representation (powers of the attorney and the like). The new paragraph reads thus:
The concept of the confirmation of powers must give every guarantee of reliability and be seen in the light of legal systems which make provision for this confirmation and place it in the hands of a particular authority, judicial in Quebec, administrative elsewhere. 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. If this indeed were the case, there would be no need to mention it alongside the measures of protection in Article 38. 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 Article 3 and it could only be given by the competent authority under the Convention. A consequence of this might be that, if the adult has, in accordance with Article 15, paragraph 2, submitted the conferred power to an applicable law other than that under which the authorities have jurisdiction under the Convention, the representative risks being deprived of the possibility of having his or her powers confirmed, for instance, by the competent authority of the State whose law is applicable to the power of representation.
In other words, the Explanatory Note makes clear that the intention underpinning the Convention – and hence Schedule 3 – is that registered power (for instance a Scottish power registered with the Office of the Public Guardian) may well be capable of an application for recognition and enforcement. That could never have benefited an attorney under an Ontario power, but the position may well be different in relation to many other types of powers.
Importantly, however, it is equally – if not more – unfortunate that SJ Hilder did not have drawn to her attention the provisions of (at the time Part 24, but now Part 23) of the Court of Protection Rules, which provide in Rule 23.6 for a standalone application to be made in any case where there is doubt as to the basis upon which the attorney under a foreign power is operating. This is what the applicants in this case should have been seeking and the court considering, and it is the course of action I would strongly advise that any attorney under a ‘foreign’ power takes in future in the case of recalcitrant institutions in England and Wales. I would hope, further, that the opportunity arises swiftly for either SJ Hilder or another judge of equivalent or greater seniority to clarify the position with the benefit of submissions based upon the matters set out above.
Appendix: Part 3 of Schedule 3 to the MCA 2005
The starting point is the principle that the law applicable to the existence, extent, modification or extinction of a foreign power of representation will be that of the country of the habitual residence of the donor as at the point of granting the power.
However, and so as to give effect to the principle that adults should have the maximum autonomy to make choices as to their own futures, a donor has a limited ability to designate in writing that a law of a different country should apply to these matters.
Importantly, perhaps, whilst Part 3 would appear on its face largely to be concerned with the position whereby questions relating to ‘foreign’ powers fall for determination by the Court of Protection, on a proper analysis Part 3 is not so limited (and nor are the Articles of the Convention upon which Part 3 draws). Part 3 therefore sets out a position which should apply in respect of ‘foreign’ powers regardless of whether or not they come before the Court of Protection.
Part 3 envisages two factual scenarios:
1. the donor was habitually resident in England and Wales at the time of making the power. In that case (and in line with the principle set out immediately above), the donor can choose to designate the law of a connected country to apply to the existence, extent, modification or extinction of the power of representation (paragraph 13(1)). For these purposes, a connected country is defined as a country: (1) of which the donor is a national; (2) in which he had previously been resident; or (3) where he has property (paragraph 13(3)). In the last of these cases, the donor can only specify that the law of that connected country apply in relation to that property (paragraph 13(4));
2. the donor was habitually resident other than in England and Wales at the time of making the power, but England and Wales is a connected country. In that case, the donor can specify that the law of England and Wales is to apply in mirror fashion to that set out above (paragraph 13(2)(b)). If the donor does not so specify, then the applicable law will be that of the foreign country (paragraph 13(2)(a)).
Paragraph 13 of Part 3 does not address two other scenarios:
1. the donor was habitually resident other than in England and Wales, has no connection with England and Wales and made no specification at all as to the law he wished to apply;
2. the donor was habitually resident other than in England and Wales and specified that the applicable law should be that of a third country.
Logic, and fidelity to the principles of the Convention, would suggest that in the first case the applicable law will be that of the habitual residence of the donor at the time of the grant of the power and that in the second, the applicable law should be that of the third country if it is a connected country (to use the language of paragraph 13). However, until and unless ratification of the Convention is extended to England and Wales (or a judicial pronouncement in a suitable case) this is a question which does not afford of a definitive answer. It may possibly have been the right question to ask on the facts of Re JMK, but given that JMK appears to have had property in England & Wales, it would have been a ‘connected country’ for purposes of paragraph 13(2)(c), such that, absent any declaration as to which law to apply, it appears that the provisions of that paragraph would have applied to make clear that the relevant law to determine validity was that of Ontario.
 Which stems from Article 15 of the 2000 Hague Convention on the International Protection of Adults.