Court Of Protection – What Happens When A Protected Party Leaves England To Live In Another Country

The Court of Protection is called upon to make decisions on behalf of a protected person where that person has been found to lack the capacity to make certain decisions for themselves.

Where the Protected Party does not have the capacity to make decisions in respect of their property and financial affairs, and there is no attorney appointed (by virtue of a Lasting Power of Attorney) if the circumstances deem it appropriate then a deputy shall be appointed to manage those affairs on their behalf.

The role of a property and affairs deputy requires that the deputy must take control of the Protected Party’s assets and manage them in accordance with what is in the Protected Party’s best interests, including being responsible for all income and expenditures.

But if the Protected Party has moved out of the country, the question is whether the deputy still retains control over their property and financial affairs. The answer is that whilst the Protected Party’s assets remain within the jurisdiction, the deputy shall be responsible for their management, because the Court of Protection’s jurisdiction extends to England and Wales.

If the Protected Party lives outside the jurisdiction but has property or money within the country, the Deputy will still be responsible for this. The Deputy may have to consider any funding the Protected Party requires and will have to make arrangements to ensure that the Protected Party has access to that funding.

Where it becomes apparent that the Protected Party shall not be returning to the jurisdiction, the Protected Party or the deputy may consider whether an alternative arrangement would be in the Protected Party’s best interests, such as transferring assets to another individual who shall take responsibility for the Protected Party’s affairs in the residing jurisdiction.

Court approval for such an arrangement however will be needed, and whilst many other countries have comparable legislation, the process is not always the same and advice from a lawyer in that other country should always be considered. Deputies are also required to visit the Protected Party once a year and if the Protected Party’s location renders this impractical, the deputy shall also consider whether it remains in the Protected Party’s best interests to continue acting.

Potter Rees Dolan Trust Corp Ltd (as property and affairs deputy for ML) v WL and another

Case background

The recent case of Potter Rees Dolan Trust Corp Ltd (as property and affairs deputy for ML) v WL and another revolved around the Protected Party residing in Poland whilst having a deputy appointed in England. The Protected Party in this case received a payment of over £3 million in relation to a bicycle accident and shortly after the accident, the Protected Party returned to live in Poland. The Protected Party’s Polish Guardian then applied for all sums held by the Deputy to be transferred to the Protected Party’s mother and in doing so sought to bring about an end to the deputyship.

During the above case, it was agreed the current assets of the Protected Party situated in England were under the control of the appointed deputy. It was further agreed at face value it would appear appropriate for the Protected Party’s assets to be managed in Poland however there were concerns as to the Protected Party’s mother’s conduct during proceedings and it was not viewed to be in the Protected Party’s best interests that the Protected Party’s mother was given responsibility for looking after the Protected Party’s finances.

In settling the dispute it was agreed between the parties that the Protected Party’s property and financial affairs would remain controlled by a deputy based in England, but by a new deputy fluent in Polish, and the Court ordered that a sum would then be provided to the Protected Party’s mother for the purchase of a property for the Protected Party, along with £100,000 made available every year for the Protected Party’s ordinary expenditure.

In addition, the Protected Party’s mother would be paid £700 a month for the provision of care to the Protected Party. It was further agreed the matter of whether the Protected Party’s assets would be transferred entirely to his Polish Guardian shall be reviewed in 3 years and then every 5 years thereafter.

The agreement was reached in accordance with the provisions of Schedule 3 of the Mental Capacity Act 2005 which provide that a deputy shall be responsible for the Protected Party’s property and financial affairs even if the Protected Party is domiciled outside the jurisdiction, providing the Protected Party’s assets remain within England and with the deputy.

It further remains that the Court of Protection’s decision will always be based on what is in the Protected Party’s best interests as whilst at a first glance it may appear the Protected Party’s assets were better placed with his Polish Guardian, there were concerns which could have prevented this in being in the Protected Party’s best interests.