Re JMK [2018] EWCOP 5

Application for an order to recognise a Canadian Power of Attorney as "a protective measure" for the purposes of Schedule 3 of the Mental Capacity Act 2005. The application was refused.

The Applicants were seeking  a declaration that the Canadian Power of Attorney was a protective measure for the purposes of Schedule 3 of the Mental Capacity Act 2005. The judge ruled that 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 had not been approved through any court process. The only remedy open to the Applicants was to apply to be appointed deputy in this jurisdiction. The Applicants applied to have the decision reconsidered.

The court dismissed the application. The Canadian Power of Attorney had been through no court process at all. It was not even subject to a system of registration. It therefore did not fall within the general understanding of the term 'protective measure' for the purposes of recognition by this Court pursuant to Schedule 3.

Read the full text of the judgment on Bailii