MENTAL CAPACITY ACT 2005
In the matter of: JMK
B e f o r e :
|In the matter of|
An attended hearing was listed to be heard in public subject to an order made on 6th January 2018 pursuant to the Practice Direction – Transparency Pilot. There was no attendance at the hearing.
This judgment is being handed down and delivered to the parties by e-mail on 14th March 2018. It consists of 5 pages and has been signed and dated by the judge.
Crown Copyright ©
The proceedings to date
"The reason for [the dismissal] is that having regard to paragraphs 19 to 25 of Schedule 3 of the Mental Capacity Act 2005, the Continuing Power of Attorney cannot be considered as a protective measure. 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. The document in this case has not been approved through any court process. The only remedy open to the Applicant is to apply to be appointed deputy in this jurisdiction."
"[JMK] requires assistance with her activities of daily living which is provided by 24 hour personal support workers and registered nursing care. Due to her lack of insight and poor judgment, [JMK] is considered an elopement risk therefore requires 24 hour security and which is why she resides in a secure home area. She is currently under the medical supervision of our Medical Director…and Nurse Practitioner… Her diagnoses include Dementia, depression, osteoporosis and hypertension."
"'Protective measure' means a measure directed to the protection of the person or property of an adult; and it may deal in particular with any of the following –
(a) The determination of incapacity and the institution of a protective regime,
(b) Placing the adult under the protection of an appropriate authority,
(c) Guardianship, curatorship or any corresponding system,
(d) The designation and functions of a person having charge of the adult's person or property, or representing or otherwise helping him,
(e) Placing the adult in a place where protection can be provided,
(f) Administering, conserving or disposing of the adult's property,
(g) Authorising a specific intervention for the protection of the person or property of the adult."
"19(1) A protective measure taken in relation to an adult under the law of a country other than England and Wales is to be recognised in England and Wales if it was taken on the ground that the adult is habitually resident in the other country.
(3) But the court may disapply this paragraph in relation to a measure if it thinks that
(a) the case in which the measure was taken was not urgent,
(b) the adult was not given an opportunity to be heard, and
(c) that omission amounted to a breach of natural justice.
(4) It may also disapply this paragraph in relation to a measure if it thinks that –
(a) recognition of the measure would be manifestly contrary to public policy,
(b) the measure would be inconsistent with a mandatory provision of the law of England and wales, or
(c) the measure is inconsistent with one subsequently taken, or recognised, in England and wales in relation to the adult."
"(1) An interested person may apply to the court for a declaration as to whether a protective measure taken under the law of a country other than England and Wales is to be registered in England and Wales.
(2) No permission is required for an application to the court under this paragraph."
a. relies in particular on paragraph 5(1)(d) - "otherwise helping him;"
b. contends that that the Continuing Power of Attorney "is designed and defined to act as a protective measure in the management of JMK's financial affairs;
c. refers to Canadian legislation "under which the POA is deemed a legal document;"
d. says that "As POA, I … am legally (and I feel morally) obligated to act responsibly in administering, conserving or disposing of JMK's property in such a way that ensure her total well being;"
e. relates that "the document has been used and recognised by both Canadian and British institutions and corporations to allow me to represent JMK in, among other things, the disposal of her house, car, settling of significant outstanding debts, insurance claims, Canadian Pensions, UK pensions (both Government and MOD) and Canadian taxes;"
f. states his view that "both the Canadian POA and our continuing actions in the execution of powers that document gives us as governed by the Act are measures performed with the sole intent of protecting the health, wellbeing, personal and financial interests of JMK and so being are those protective measures required and defined within section 5(1) of the UK Mental Health Act 2005(sic)"
a. "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"; and
b. "There is no requirement that these documents be registered. The government does not keep a registry."
Her Honour Judge Hilder
14th March 2018