Recognition Of Foreign Guardianship In The Court Of Protection

In England and Wales, there are two main ways in which a person can have authority over another’s property and financial affairs and/or health and welfare, being through either a Power of Attorney or deputyship.

The key difference between the two is that a Power of Attorney is granted by the donor whilst they retain capacity, whereas a deputyship is made by the Court of Protection once a person has been assessed to lack capacity. The powers conferred through either can vary depending on the authority granted by the donor or the Court of Protection and can extend to being able to make all decisions regarding a person’s affairs. Examples of this include:

It is paramount that when acting on behalf of the incapacitated person that decisions are made in accordance with their best interests.

Foreign guardianship in The Court of Protection

Whilst similar principles apply outside of England and Wales, those similar positions are not always automatically valid in the jurisdiction. The Mental Capacity Act 2005 allows protective measures made outside of the jurisdiction to be recognised where it is deemed the individual concerned is habitually resident of another country or that a foreign convention applies allowing recognition. This can be disapplied by the Court of Protection when:

Where the Court of Protection finds the above rules apply, the matter shall be brought before the Court in order for a decision to be made in accordance with the individual’s best interests. This was seen in the recent case of Aberdeenshire Council v SF (by her litigation friend, the Official Solicitor) and others. This case concerned a Scottish Guardianship Order (SGO), which was held by the mother of SF.

Aberdeenshire Council v SF (by her litigation friend, the Official Solicitor) and others

Case summary

SF had been detained in England under the Mental Health Act 1983 and was due to be placed in a supported living placement, remaining in England. This placement would deprive SF of her liberty and proceedings were commenced in respect of that deprivation and to consider whether this could be consented to by SF’s mother pursuant to the SGO she held. Before considering the application of the SGO in the England and Wales jurisdiction, the Court first satisfied itself that an SGO grants sufficient authority to restrict a person’s liberty.

The Court then turned to whether the SGO should be used in this case or whether the rules allowed the jurisdiction of the SGO to be disapplied. The Court noted that the placement would be for a number of years and therefore did not require an urgent decision regarding the permanent deprivation of liberty. The Court also noted that SF was not invited to express her wishes regarding the placement. The Court concluded the lack of urgency and failure to ascertain SF’s wishes amounted to a breach of natural justice and therefore the powers conferred by the SGO would be disapplied.

The Court further commented that in allowing the SGO to be used it would have deprived SF of her views to be heard and considered, in breach of her human rights set by the Human Rights Act 1998. The SGO was therefore disapplied and the parties were invited to agree on further directions with respect to reaching a decision on behalf of SF.

Comment

This case shows the Court of Protection’s continued efforts to act in a person’s best interests and how a foreign guardianship order may be disapplied in order to achieve certainty. Disapplying the SGO and allowing SF’s own views to be ascertained will enable the Court to make a best interests decision after considering all relevant circumstances/evidence.