Re JMK (2018) EXCOP 5

The application was made by SH and PH (the daughter and son-in-law of JMK) for The Court to recognise a Canadian Power of Attorney pursuant to Schedule 3 of the Mental Capacity Act 2005. The issue for determination is whether the instrument amounted to “a protective measure” for the purposes of Schedule 3.

SJ Hilder stated “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.”

The order made on 31st August 2018 by the previous DJ was upheld, which had stated that this Canadian Continuing Power of Attorney could not be considered as a protective measure and that 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.

It remains open to the Applicants to apply to be appointed as property and affairs deputies in this jurisdiction.