Cross-border implications of the legal protection of adults.
Date: 2015-12-15
Institutions: Directorate-General for Internal Policies of the Union
Subjects: adult, inheritance, judicial cooperation in civil matters in the EU, law of succession, private international law

 
DIRECTORATE GENERAL FOR INTERNAL POLICIES 


POLICY DEPARTMENT C: CITIZENS' RIGHTS AND 

CONSTITUTIONAL AFFAIRS 


LEGAL AFFAIRS 


CROSS-BORDER IMPLICATIONS OF THE LEGAL 

PROTECTION OF ADULTS 


NOTE 

Abstract 

Convention  XXXV  is  of  significant  assistance  in  relation  to  cross-border 
capacity  issues.  However,  it  does  have  some  weaknesses.  Accordingly, 
Member  States  should  be  encouraged  to  ratify  Convention  XXXV.  In 
addition  the  creation  of  a  form  of  European  Power  of  Representation 
would be extremely useful. 

PE 462.497 

EN 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
This document was requested by the European Parliament's Committee on Legal Affairs. 

AUTHOR 

FRIMSTON Richard BSc, TEP, Solicitor, Notary Public. 
Chairman STEP EU Committee 

RESPONSIBLE ADMINISTRATOR 

Vesna NAGLIČ 
Policy Department C: Citizens' Rights and Constitutional Affairs 
European Parliament 
B-1047 Brussels 
E-mail: vesna.naglic@europarl.europa.eu 

LINGUISTIC VERSIONS 

Original: EN 

ABOUT THE EDITOR 

To contact the Policy Department or to subscribe to its monthly newsletter please write to: 
poldep-citizens@europarl.europa.eu 

European Parliament, manuscript completed in December 2012. 
© European Union, 2012. 

This document is available on the Internet at: 
http://www.europarl.europa.eu/studies 

DISCLAIMER 

The  opinions  expressed  in  this  document  are  the  sole  responsibility  of  the  author  and  do 
not necessarily represent the official position of the European Parliament. 

Reproduction  and  translation  for  non-commercial  purposes  are  authorised,  provided  the 
source is acknowledged and the publisher is given prior notice and sent a copy. 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
CROSS-BORDER IMPLICATIONS OF THE LEGAL PROTECTION OF ADULTS 
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CONTENTS 

LIST OF ABBREVIATIONS 	

EXECUTIVE SUMMARY	 

INTRODUCTION 	

4
 

5
 

8
 

1.	  HAGUE CONVENTION XXXV OF JANUARY 13, 2000 ON THE 


INTERNATIONAL PROTECTION OF ADULTS (CONVENTION XXXV) AND 

PIL IN ENGLAND & WALES 

10
 

1.1.  Private International Law in England & Wales relating to Adult Incapacity 
11 

under Schedule 3 post 30 September 2007 

1.2.  Re MN [2010] EWHC 1926 (Fam)	 

1.3.  Re M EWHC 3590 (COP)	 

2.	  POWERS OF REPRESENTATION – POWERS OF ATTORNEY 

2.1.  Hague Convention XXVII of March 14, 1978 on the Law Applicable to
 

Agency 

2.2.  Applicable Law for Powers of Representation	 

2.3.  Revocation of Lasting Powers of Attorney	 

3.	  THE EUROPEAN UNION AND THE ROME I REGULATION 

4.	  THE EUROPEAN UNION AND THE SUCCESSION REGULATION 

5.	  TAKING OF EVIDENCE 

6.	  CONVENTION XXXV AND ITS WEAKNESSES 

7.	  OTHER PRACTICAL PROBLEMS 

8.	  FUTURE ACTIONS 

8.1.  Convention XXXV	 

8.2.  Regulation	 

8.3.  A European Power of Representation	 

8.4.  Information	 

12
 

13
 

14
 

14
 

15
 

16
 

17
 

18
 

19
 

20
 

21
 

22
 

22
 

22
 

22
 

22
 

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LIST OF ABBREVIATIONS 


Convention  Hague Convention XXXV for the International Protection of Adults of 

XXXV  13 January 2000 

EPA  Enduring Power of Attorney of England & Wales 

EPR  European Power of Representation 

Lagarde  The  explanatory  report  to  Convention  XXXV  of  Professor  Paul 

Report  Lagarde 

LPA  Lasting Power of Attorney of England & Wales 

MCA 2005  Mental Capacity Act 2005 of United Kingdom 

OPG  Office of Public Guardian of England & Wales 

PIL  Private International Law 

Rome I  Regulation  No  593/2008  of  17  June  2008  on  the  law  applicable  to 

Regulation  contractual obligations 

Succession  Regulation  No  650/20128  of  4  July  2012  on  jurisdiction,  applicable 

Regulation  law,  recognition  and  enforcement  of  decisions  and  acceptance  and 

enforcement of  authentic  instruments in  matters of succession and 

on the creation of a European Certificate of Succession 

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EXECUTIVE SUMMARY 

Background 

Private  international  law  (PIL)  in  the  area  of  capacity  of  adults  has  in  the  past  been  very 
uncertain.  Capacity  is  not  a  separate  legal  classification  or  qualification,  but  a  particular 
requirement  for  one  of  many  separate  legal  acts.  Under  many  internal  laws,  the  precise 
test  of  capacity  differs  between  each  act.  As  regards  PIL,  the  governing  rules  may  also 
differ  between  each  legal  act.  For  example,  the  question  as  to  whether  a  person  has  the 
capacity to enter into a contract, may be governed by the law of the contract; to enter into 
marriage or make a Will, under the law of England & Wales is probably governed by the law 
of domicile (as the person’s personal law) at the time of making the Will for movables and 
the law of situs for immovables.  

Under  the  Succession  Regulation  (EU)  No  650/2012,  these  questions  will  be  governed  by 
the law which would have been applicable to the succession, if death had occurred on the 
day the disposition was made. 

Under the PIL of many Member States, many capacity questions are governed by the law of 
the state of nationality as the relevant personal law. 

It  should  also  be  borne  in  mind  that  the  approach  to  capacity  in  each  jurisdiction,  can  be 
very different. 

In  most  of  the  UK,  there  is  now  a  presumption  that  a  person  has  capacity.  Questions  of 
capacity are to be act specific, and lack of capacity in relation to one act, does not imply a 
lack  of  capacity  for  other  acts.  All  decisions  made  for  a  person  must  be  made  in  that 
person’s  best  interests.  In  some  jurisdictions,  if  it  is  found  that  a  person  lacks  capacity, 
then they are regarded as lacking capacity for all relevant actions. 

The Alzheimer Europe website provides an excellent summary of some of these issues and 
the  differences  of  their  treatment  in  various  Member  States  and  other  European 
jurisdictions. (http://www.alzheimer-europe.org/Alzheimer-Europe) 

The  various  comparative  national  reports  for  Member  States  and  other  European 
jurisdictions are also a very useful resource. 

As the number of older people in the EU continues to rise, the number of such older people 
resident in a Member State other than the Member State of their nationality also increases. 
Advisers  are  seeing  more  and  more  problems  associated  with  dealing  across  national 
borders with the assets of persons who have lost capacity and the problems of moving such 
persons from one Member State to another, so that they may be cared for nearer to their 
relatives in another Member State. 

Even  between  Member  States  that  have  ratified  Convention  XXXV  the  recognition  of  a 
Power of Representation in another Member State, can be complex and difficult in practice. 

Aim 

Hague  Convention  XXXV  of  January  13,  2000  on  the  International  Protection  of 
Adults (Convention XXXV) and its strengths 

Other  experts  will  describe  the  detailed  mechanics  of  Convention  XXXV  and  its  effects  on 
private international law; the usual PIL issues of jurisdiction, applicable law and recognition 
and enforcement. 

Convention  XXXV  is  in  force  in  six  Member  States  (and  Switzerland).  The  UK  has, 
unusually, only ratified Convention XXXV in relation to Scotland by virtue of the Adults with 
Incapacity (Scotland) Act 2000 asp 4. Notwithstanding this, the law in England & Wales as 

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set out in the Mental Capacity Act 2005 (MCA2005) and in particular its Schedule 3 (Sch.3 
MCA2005), is now virtually identical to Convention XXXV.  

The cases of Re MN [2010] EWHC 1926 (Fam) and Re M EWHC 3590 (COP) are examples 
of  the  courts  of  England  &  Wales  considering  the  effects  of  Sch.3  MCA2005  and  the 
changed PIL in England & Wales. 

The  clear  rules  as  to  jurisdiction,  applicable  law  and  recognition  and  enforcement  are  a 
huge  advance  compared  to  the  confused  rules  of  many  non  Convention  XXXV  Member 
States. 

The Differences between Convention XXXV and Sch.3 MCA2005 

Convention  XXXV  applies  to  Adults  defined  as  persons  of  18  years  who  as  a  result  of  an 
impairment  or  insufficiency  of  his  personal  faculties  cannot  protect  his  interests,  whereas 
Sch.3  MCA2005  applies  to  such  persons  of  16  years  (save  when  Brussels  IIbis  or  Hague 
Convention XXXIV apply). 

Sch.3  MCA2005  also  applies  not  only  to  such  persons  of  16  years,  but  also  to  Donors  of 
Powers  of  Representation  (Lasting  Powers  of  Attorney)  whether  or  not  so  impaired  or 
insufficient. This means that although the whole of Convention XXXV only applies to Adults 
whose  capacity  is  impaired,  Sch.3  applies  also  to  Lasting  Powers  of  Attorney,  whether  or 
not the donor has impaired capacity. 

In practice, this extension is very  helpful and practical. The same PIL rules apply whether 
or  not  the  Donor  has  completely  lost  capacity  under  all  relevant  laws.  The  dignity  of  the 
Donor can often be retained as a result. 

Convention XXXV and its weaknesses 

In  a  European  context,  a  Hague  convention  can  be  unsatisfactory.  The  definitions  of 
“Habitual residence”, “impairment or insufficiency of faculties” or “protective measures” are 
not necessarily the same in each Member State. 

The  fact  that  Convention  XXXV  only  applies  to  Powers  of  Representation  once  the  donor 
cannot  protect  his  interests  as  a  result  of  an  impairment  or  insufficiency  of  his  personal 
faculties,  is  an  inherent  weakness.  Third  parties  find  it  impossible  to  establish  easily 
whether  under  the  applicable  law,  circumstances  have  arisen  so  that  Convention  XXXV 
actually applies to the Power of Representation. Even if it is clear that such circumstances 
have  arisen,  it  can  be  difficult  for  third  parties  to  understand  and  accept  a  Power  of 
Representation created in a foreign language under the law of another Member State. 

Future Actions 

Convention XXXV 

The EU Parliament Resolution P6 TA(2008)0638 of December 18, 2008 at para. 4 calls on 
the EU Commission to assess the option of the accession of the Community as a whole to 
the  Convention  XXXV  and  suggests  that  this  could  be  an  area  of  enhanced  cooperation 
between  Member  States.  The  EU  Commission  Action  Plan  of  April  2010  implementing  the 
Stockholm  Programme  COM(2010)  171  refers  to  the  desirability  of  EU  Member  states 
acceding to Convention XXXV and that in 2014 the Commission is to report as to the need 
for additional proposals. 

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STEP  would  support  the  Parliament  Resolution  and  has  been  pressing  Member  States  to 
ratify  Convention  XXXV.  The  failure  of  the  UK  to  ratify  Convention  XXXV  in  relation  to 
England & Wales appears particularly parsimonious. 

Regulation 

STEP would also support moves to convert Convention XXXV into an EU Regulation so as to 
harmonise the individual definitions and place it under the jurisdiction of the European 
Court of Justice. 

A European Power of Representation 

A most useful practical measure would be the creation under such a Regulation of a form of 
European Power of Representation (EPR). The creation of a form of EPR which could be 
easily understood and recognised throughout the European Union would reduce many 
existing practical problems. It would be most helpful if the EPR could be used both before 
and after a person as a result of an impairment or insufficiency of his personal faculties can 
no longer protect his interests.  

Information 

STEP would also propose that information should be more readily available on the internet 
as to the internal law relating to incapacity in individual Member States, in order to provide 
assistance to individual citizens. 

As the number of older EU citizens increases, these issues will become ever more relevant. 
The EU Year of Citizens, would be a good year to begin to make progress on these issues. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 
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INTRODUCTION 

PIL on the subject of mental capacity is diverse, complex and difficult. 

KEY FINDING 


Private  international  law  (PIL)  in  the  area  of  capacity  of  adults  has  in  the  past  been  very 
uncertain.  Capacity  is  not  a  separate  legal  classification  or  qualification,  but  a  particular 
requirement  for  one  of  many  separate  legal  acts.  Under  many  internal  laws,  the  precise 
test  of  capacity  differs  between  each  act.  As  regards  PIL,  the  governing  rules  may  also 
differ  between  each  legal  act.  For  example,  the  question  as  to  whether  a  person  has  the 
capacity to enter into a contract, may be governed by the law of the contract1; to enter into 
marriage or make a Will, under the law of England & Wales is probably governed by the law 
of domicile at the time of making the Will for movables and the law of situs for immovables. 

The  Scottish  Law  Commission  Report  on  Succession2  of  April  2009  indicates  that  under 
current  Scottish  PIL  capacity  to  make  a  Will  for  movables  is  governed  by  the  law  of 
domicile, whilst for immovables is governed by the law of situs. It recommends that instead 
the law of domicile should govern both questions. 

Under  the  Succession  Regulation  (EU)  No  650/2012,  these  questions  will  be  governed  by 
the law which would have been applicable to the succession, if death had occurred on the 
day the disposition was made. 

It  should  also  be  borne  in  mind  that  the  approach  to  capacity  in  each  jurisdiction,  can  be 
very different. 

In  most  of  the  United  Kingdom,  there  is  now  a  presumption  that  a  person  has  capacity. 
Questions of capacity are to be act specific, and lack of capacity in relation to one act, does 
not imply a lack of capacity for other acts. All decisions made for a person must be made in 
that person’s best interests. 

The Alzheimer Europe website provides an excellent summary of some of these issues and 
the  differences  of  their  treatment  in  various  European  states.3  The  various  comparative 
national reports for 18 European jurisdictions are also a very useful resource.4 

The United  Nations  Convention  on  the  Rights  of  Persons  with  Disabilities5  and  Optional 
Protocol,  were  adopted  in  2006  and  entered  into  force  on  May  3,  2008.  The  Convention 
attempts  to  change attitudes  and  approaches  to  persons  with  disabilities  so  that  they  are 
seen not as "objects" of charity, medical treatment and social protection but as "subjects" 
with  rights,  who  are  capable  of  claiming  those  rights  and  making  decisions  for  their  lives 
based on their free and informed consent as well as being active members of society. 

The Convention has been ratified by over 100 states.6 The United Kingdom ratified on June 
8, 2009 and the European Union on December 23, 2010. 

1

  See  for  example  the  case  of  Gorjat  and  others  v  Gorjat  [2010]  EWHC  1537  (Ch)  and  the  applicability  of  the 

Rome Convention and the Rome I Regulation to gifts.
2

 (SCOT LAW COM No 215) at para.5.11 

3 

4 

5 

6 

http://www.alzheimer-europe.org/Alzheimer-Europe 

http://www.alzheimer-europe.org/EN/Policy-in-Practice2/Country-comparisons 

http://www.un.org/disabilities/default.asp?id=150 

http://www.un.org/disabilities/countries.asp?id=166 

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As the number of older people in the EU continues to rise, the number of such older people 
resident in a Member State other than the Member State of their nationality also increases. 
Advisers  are  seeing  more  and  more  problems  associated  with  dealing  across  national 
borders with the assets of persons who have lost capacity and the problems of moving such 
persons from one Member State to another, so that they may be cared for nearer to their 
relatives in another Member State. 

Even  between  Member  States  that  have  ratified  Convention  XXXV  the  recognition  of  a 
Power of Representation in another Member State, can be complex and difficult in practice. 

The direct private international law issues linked to the incapacity of adults are: 

	  Which Court has jurisdiction to make orders in relation to an incapacitated adult’s 

personal welfare and/or property and affairs? 

	  Which state’s law will that Court apply? 

	  Will jurisdiction B recognise and enforce: 

o	  An Order of the Courts of State A and if so will it apply local conditions of 

implementation? 

o	  A form of Power of Representation or Attorney intended to have effect after 

the onset of mental incapacity, if valid in State A?  

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1. HAGUE  CONVENTION  XXXV  OF  JANUARY  13,  2000  ON 
INTERNATIONAL  PROTECTION  OF  ADULTS 

THE 
(CONVENTION XXXV) AND PIL IN ENGLAND & WALES 

KEY FINDINGS 

  Although the UK has only ratified Convention XXXV with effect for Scotland, the PIL 

in England & Wales is very similar but with some subtle differences. 

  The cases of Re MN and Re M illustrate some of the complexities. 

Other experts will describe the detailed mechanics of Convention XXXV and its effects on 
private international law; the usual PIL issues of jurisdiction, applicable law and recognition 
and enforcement. 

However, the particular effects of Convention XXXV in the United Kingdom are of interest. 
Convention  XXXV  has  been  ratified  by  the  United  Kingdom  in  relation  to  Scotland  only  by 
virtue  of  the  Adults  with  Incapacity  (Scotland)  Act  2000  asp  47.  The  United  Kingdom  has 
under art.55 declared that its ratification of Convention XXXV only extends to Scotland.  

Notwithstanding  this,  s.63  of  the  Mental  Capacity  Act  2005  (MCA  2005)  specifically  states 
that Sch.3 of the MCA 2005 gives effect in England and Wales to Convention XXXV (in so 
far  as  the  Act  does  not  otherwise  do  so),  and  makes  related  provision  as  to  the  private 
international law of England and Wales. Both s.63 and Sch.3 MCA 2005 have been effective 
from October 1, 2007. 

However,  by  para.35  of  Sch.3,  para.8  [jurisdiction  in  relation  to  non  residents],  para.9 
[jurisdiction  in  relation  to  convention  countries],  para.19(2)  and  19(5)  [protective 
measures made by convention countries], Part 5 [co-operation with convention countries], 
and  para.30  [Article  38  certificates  given  by  convention  countries]  are  only  to  come  into 
force, when Convention XXXV itself enters into force.  

Although  Convention  XXXV  is  effective  in  England  &  Wales,  England  &  Wales  has  not  yet 
actually  ratified.  It  is  understood  that  England  &  Wales  is  still  committed  to  ratifying  as 
soon as practicable and is actively working towards this. 

Thus,  although  England  &  Wales  has  not  ratified,  its  law  (subject  to  a  few  minor 
differences)  is  now  fundamentally  the  same  as  the  Convention  by  virtue  of  Sch.3  to  the 
MCA 2005. 

The main differences between Convention XXXV and Sch.3 are: 

  Convention XXXV applies to adults defined as persons of 18 years8; 

  Sch.3 applies to persons of 16 years.9 

However,  since  the  Hague  Convention  XXXIV  on  Jurisdiction,  Applicable  Law,  Recognition, 
Enforcement  and  Co-Operation  in  respect  of  Parental  Responsibility  and  Measures  for  the 

8 

Art.2.1 

9

 Para.4(b) 

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Protection  of  Children  came  into  force  in  the  United  Kingdom  on  November  1,  2012  the 
definition of adult for purposes of Schedule 3 to the MCA 2005 is now:  

“4(1)“Adult” means [subject to sub-paragraph (2)] a person who— 

(a) as a result of an impairment or insufficiency of his personal faculties, cannot protect his 
interests, and 

(b) has reached 16. 

[(2) But “adult” does not include a child to whom either of the following applies— 

(a)  the  Convention  on  Jurisdiction,  Applicable  Law,  Recognition,  Enforcement  and  Co-
Operation in respect of Parental Responsibility and Measures for the Protection of Children 
that was signed at The Hague on 19 October 1996; 

(b) Council Regulation (EC) No. 2201/2003 concerning jurisdiction and the recognition and 
enforcement  of  judgments  in  matrimonial  matters  and  the  matters  of  parental 
responsibility.]”10 

	  Convention XXXV applies only to adults who, by reason of an impairment or 

insufficiency of their personal faculties, are not in a position to protect their 

interests.11
 

	  Although Sch.3 defines “Adult” in the same terms,12 Sch.3 also applies not only to 
“Adults”, but also to Donors of Powers of Attorney whether or not so impaired or 
insufficient. This means that although the whole of Convention XXXV only applies to 
Adults whose capacity is impaired, Sch.3 applies also to certain Powers of Attorney, 
whether or not the donor has impaired capacity. 

Sch.3  also  applies  Convention  XXXV  to  conflicts  within  the  United  Kingdom  between 
England  &  Wales  on  the  one  hand  and  Scotland  or  Northern  Ireland  on  the  other,  since 
para.3(1) defines “Country” to include a territory which has its own system of law.  

1.1.	  Private International Law in England & Wales relating to Adult 

Incapacity under Schedule 3 post 30 September 2007  

The clear rules as to jurisdiction, applicable law and recognition and enforcement are a 
huge advance compared to the confused rules of many non Convention XXXV Member 
States. 

There have been two reported cases in England & Wales looking at the application of the 
Private International Law rules set out in Sch.3 MCA 2005.  

10

  Regulations  1(2)  and  17  of  The  Parental  Responsibility  and  Measures  for  the  Protection  of  Children 

(International Obligations) (England and Wales and Northern Ireland) Regulations 2010 
11

 Art.1.1 

12

 Para.4(a) 

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1.2.  Re MN [2010] EWHC 1926 (Fam) 

The judgment of Hon. Mr. Justice Hedley in the case of Re MN13 of July 30, 2010 was the 
first  reported  Anglo-Welsh  decision  relating  to  cross  border  capacity  issues,  since  the 
advent of Sch. 3.  

The  case  involved  the  removal  of  MN  from  California  to  England  under  a  Californian 
Advance  Health  Care  Directive.  After  the  removal,  the  Californian  court  made  various 
orders including directing the return of MN to California. 

The judgement in Re MN reached two conclusions: 

The removal of a child from one jurisdiction to another by one parent without the 
1. 
consent  of  the  other  is  wrongful  and  is  not  effective  to  change  habitual  residence.14  The 
wrongful  removal  of  an  incapacitated  adult  should  have  the  same  consequence  and  leave 
the courts of the country from which the adult was taken free to take protective measures. 

If  habitual  residence  had  not  been  changed  and  the  Californian  court  had 
2. 
jurisdiction, the question was raised as to whether s.1(5) MCA2005 requiring an act to be 
done in the person’s best interests, was a mandatory provision for the purposes of Sch.3, 
para 19(4)(b). If it was and if the recognition and enforcement of an order would not be in 
the best interests of the adult, then para.19(4)(b) would give the court the discretion not to 
recognise  and  enforce.  The  question  was  whether  a  decision  to  recognise  and  /or  enforce 
an order is a decision made for or on behalf of the adult?15  The court decided16 this difficult 
question in the negative for three reasons: 

	 

that a decision to recognise or enforce could not properly be described as a decision 
“for and on behalf” of the adult. It is a decision in respect of an order not a person. 

	  This technical reason is justified as reflecting the policy of Sch.3 and of Part 4 

namely ensuring that persons who lack capacity have their best interests and their 
affairs dealt with in the country of their habitual residence; to decide otherwise 
would be to defeat that purpose. 

	  Best interests in the implementation of an order are relevant and are dealt with by 

para.12 which would otherwise not really be necessary 

However, the court was concerned that such an approach might lead both to hardship and 
artificiality.17 

The Lagarde Report considered the questions of mandatory provisions also known as “loi de 
police”  in  the  context  of  both  Arts.  20  and  22  and  considered  that  the  majority  of  these 
questions would relate to medical matters.  

13

14

15

16

17

 [2010] EWHC 1926 (Fam)
 

 [2010] EWHC 1928 (Fam) at para.22 and see e.g.Re PJ [2009] 2 FLR 1051 (CA)
 

 [2010] EWHC 1928 (Fam) at para.30.
 

 [2010] EWHC 1928 (Fam) at para.31 


 [2010] EWHC 1928 (Fam) at para.32 


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1.3.  Re M EWHC 3590 (COP) 

The Hon. Mr. Justice Mostyn in the case of Re M18 of December 21, 2011 held that an order 
of  the  Irish  High  Court  should  be  recognised  under  Para.19,  Sch.  3  MCA2005, 
notwithstanding  the  fact  that  it  involved  the  deprivation  of  liberty,  and  if  M  had  been 
habitually resident in England & Wales, could not have been made in a welfare order under 
s.16 MCA2005. The court considered that the ability to disapply under Para.19(4) were not 
relevant on the particular facts, but could be in other circumstances. 

18 

[2011] EWHC 3590 (COP) 

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2. POWERS OF REPRESENTATION – POWERS OF ATTORNEY 

  PIL on the subject of Powers of Representation is also complex but also incomplete. 

  Generally, only issues of applicable law are dealt with. 

KEY FINDINGS 


In  relation  to  Powers  of  Representation,  defined  in  England  &  Wales  as  “Lasting  Powers” 
and including all powers having a like effect, by virtue of para.13 of Sch.3 MCA 2005, the 
law applicable is: 

	 

	 

that of the country of the Donor’s habitual residence 

that of a country of which he is a national, or in which he has formerly been 
habitually resident or in which he has property (but only in respect of that property), 
if the Donor specifies that law in writing,19 (even if that applicable law does not itself 
recognise such powers). 

Many  jurisdictions  have  forms  of  powers  of  attorney  that  have  a  like  effect  to  a  Lasting 
Power  of  Attorney.  These  can  be  called  Enduring, Continuing  or  Durable  Powers,  mandats 
de  protection  future,  Vorsorgevollmächte  or  Vorsorgeaufträge.  It  should  be  remembered 
that in many jurisdictions, marriage or divorce automatically revokes a power of attorney. 
The precise classification of this act of revocation will vary between states. 

The International Guardianship Network (IGN) is a useful resource in this area20. The IGN is 
a project from the non-profit and non-government organisation Betreuungsverein Treptow-
Köpenick e.V. in Berlin and its international partners. 

The  Council  of  Europe  has  also  considered  the  question  of  continuing  powers  of  attorney 
and  advance  directives.  The  Council  of  Europe  recommendation  R(99)4E21  of  23  February 
1999  concerning  the  protection  of  incapable  adults  has  now  been  supplemented  by 
recommendation CM/Rec(2009)1122 on principles concerning continuing powers of attorney 
and advance directives for incapacity which was adopted on 9 December 2009. There is a 
related fact sheet from the CoE Legal Committee on Legal Co-operation (CDCJ).23 

Lasting Powers as a form of power of attorney, may however be classified or characterised 
by some jurisdictions as forms of contractual delegation, mandate or of agency. This does 
cause some conflicts issues. 

2.1.	  Hague  Convention  XXVII  of  March  14,  1978  on  the  Law 

Applicable to Agency 

The Hague Agency Convention has been ratified by Argentina, France, the Netherlands and 
Portugal  and  is  in  force.  An  explanatory  report  was  published  in  1978.24  Generally  the 
applicable  law  for  agency  is  the  internal  law  at  the  place  of  business  or  the  habitual 
residence of the agent, unless the place where the agent is to act is also that of the place 

19

 MCA 2005 Sch.3, para.13 

20 

21 

http://www.international-guardianship.com/ 

http://www.coe.int/document-library/default.asp?urlwcd=https://wcd.coe.int/ViewDoc.jsp?id=407333 

22

23

http://www.coe.int/document-library/default.asp?urlwcd=https://wcd.coe.int/ViewDoc.jsp?id=1563397 

http://www.coe.int/t/dghl/standardsetting/family/Fact%20Sheet%20on%20continuing%20powers%20of%20att 

orney.pdf
24 

http://www.hcch.net/index_en.php?act=publications.details&pid=2947 

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of  business  or  the  habitual  residence  of  the  principal.25  The  parties  may  expressly  choose 
any  applicable  internal  law.26  Renvoi  is  not  applied.  The  Rome  I  Regulation  (EC)  No 
593/2008 of June 17, 2008 on the law applicable to contractual obligations does not include 
these rules. 

This  is  an  example  of  the  existing  private  international  law  that  may  apply  to  Lasting 
Powers in other jurisdictions even those that are parties to Convention XXXV, but at times 
when the Donor’s capacity is not impaired.  

2.2.  Applicable Law for Powers of Representation 

However,  under  the  law  of  England  &  Wales,  by  virtue  of  para.13  of  Sch.3  MCA  2005,  a 
British citizen most closely connected to England & Wales will be subject to the provisions 
of Sch.3. This will include questions as to the existence, extent, modification and extinction 
of  Lasting  Powers  and  these  are  governed  by  the  law  of  the  state  of the  Donor’s  habitual 
residence at the time of the creation of the Lasting Power, unless a different law has been 
specified in writing; that of a country of which he is a national, or in which he has formerly 
been habitually resident or in which he has property, (even if that applicable law does not 
itself recognise such Lasting Powers). These rules apply under the law of England & Wales 
whether or not the Donor’s capacity has been impaired. 

If the Donor is an “Adult”, i.e. capacity has been impaired, then the remainder of Sch.3 will 
also  apply.  This  should  therefore  also  include  questions  of  determination  of  incapacity. 
Since  Renvoi  no  longer  applies,  it  is  the  internal  law  of  the  habitual  residence  (or  other 
specified state) that will be applicable. 

The manner of exercise, however, is governed by the law of the state in which the Lasting 
Power is exercised. 

It should also be noted that the protection granted to third parties by para.16 of Sch.3 does 
only apply to lasting powers granted by “Adults” so that no such protection under para.16 
is available if the donor is not as a result of an impairment or insufficiency of his personal 
faculties, unable to protect his interests 

The effect of these rules is that provided it is clear that the Donor is not mentally capable 
at the time the Lasting Power is exercised and unless some other law is specified in writing, 
a Lasting Power of a British citizen habitually resident in 

	  England & Wales at the time of the grant of the Lasting Power will be subject to 

English internal law unless some other relevant law is specified. 

	  For example, France at the time of the grant of the Lasting Power will be subject to 

French internal law unless some other relevant law is specified 

It  should  be  born  in  mind  that  the  same  issues  apply  in  relation  to  Lasting  Powers  made  
when the donor was habitually resident in a state not a party to Convention XXXV such as 
one of the United States or of the states of Australia or if the Donor has chosen to make a 
Lasting Power in the form recognised by one of those states by virtue of a connecting factor 
of nationality or of former habitual residence under para.13.  

Sch.3  does,  of  course,  now  set  out  the  private  international  law  in  England  &  Wales  and 
therefore  in  addition  to  setting  out  the  rules  for  jurisdiction  and  recognition  in  England  & 
Wales it also sets out the applicable law and therefore the rules as to which lasting powers 
are  or  are  not  valid.  A  lasting  power  (i.e.  such  as  a  South  Australian  Enduring  Power  of 

25

26

 Art.6 

 Art.5 

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Attorney) validly made in South Australia by a person habitually resident in South Australia 
at  the  time  of  creation,  is  now  valid  whenever  the  power  was  made.  An  old  form  Anglo-
Welsh  Enduring  Power  of  Attorney  made  by  a  person  habitually  resident  at  the  time  of  
creation in a state where such powers are not valid, will now be invalid, even if made at an 
earlier time when Sch.3 did not apply (unless validated by England & Wales being correctly 
specified as a connected country). 

However,  since  Convention  XXXV  has  not  yet  been  ratified,  it  is  currently  not  possible  to 
obtain an Art.38 certificate from the UK Office of the Public Guardian. Proving the existence 
of a valid Anglo-Welsh power of representation in another jurisdiction, may be difficult. 

The position in Northern Ireland is that The Enduring Powers of Attorney (Northern Ireland) 
Order  1987  [SI  1987  No.  1627  (N.I.  16)]  still  subsists,  so  that  Northern  Ireland  Enduring 
Powers of Attorney (NIEPA) remain valid and can still be made. 

Since there are as yet no new private international law rules in Northern Ireland (Northern 
Ireland  not  yet  having  any  provisions  similar  to  Sch.3),  a  Northern  Irish  EPA  will  be  valid 
under the law of Northern Ireland, but not under the law of England & Wales if the donor 
was not habitually resident in Northern Ireland at the time of the making of the NIEPA. If 
Northern  Irish  law  is  clearly  specified  in  the  NIEPA  (which  one  can  argue  is  the  case  in 
relation  to  the  statutory  form)  then  the  NIEPA  is  valid  but  only  in  relation  to  property 
situated in Northern Ireland and not to any other property. 

Northern  Ireland  will  not  currently  recognise  any  form  of  Lasting  Power  other  than  a 
Northern  Irish  EPA.  However,  a  new  Mental  Capacity  (Health,  Welfare  and  Finance)  Bill  is 
proposed which may be enacted during 2013. 

In  practice,  the  extension  in  England  &  Wales  of  Convention  XXXV  to  Lasting  Powers  of 
Attorney,  whether  or  not  the  Donor’s  capacity  has  been  impaired  to  is  very  helpful  and 
practical. The same PIL rules apply whether or not the Donor has completely lost capacity 
under all relevant laws. The dignity of the Donor can often be retained as a result. 

2.3.  Revocation of Lasting Powers of Attorney 

In accordance with Sch.3 MCA 2005, the law applicable to the extinction of a lasting power 
of attorney or power of representation is also governed, as described above, by para. 13. 

It should be remembered therefore that the revocation of a lasting power on the death of 
the donor or revocation under section 13 on the donor’s bankruptcy or termination on the 
death,  bankruptcy,  or  lack  of  capacity  of  the  donee  or  the  divorce  or  dissolution  of  a 
marriage  or  civil  partnership  between  the  donor  and  donee  will  only  apply  if  the  law  of 
England & Wales is the law applicable. 

Other  applicable  laws  will  have  very  different  provisions.  In  many  European  jurisdictions, 
the death of the donor does not terminate a power of attorney. In some jurisdictions such 
as  New  South  Wales  the  marriage  of  the  donor  other  than  to  the  donee,  automatically 
revokes a power of attorney, but divorce does not. 

Careful  consideration  therefore  always  needs  to  be  given  to  all  the  events  that  might  or 
might not affect the validity of the power. 

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3. THE EUROPEAN UNION AND THE ROME I REGULATION 

Art.13 of Rome I Regulation should not be overlooked.  

KEY FINDING 


Regulation  No  593/2008  of  17  June  2008  on  the  law  applicable  to  contractual  obligations 
has been in force since 17 December 2009 and is similar to the Rome Convention. Although 
Art.  1  para.  2(a)  of  Rome  I  specifically  excludes  its  application  to  questions  involving  the 
status  or  legal  capacity  of  natural  persons,  Article  13  sets  out  a  provision  in  relation  to 
incapacity. 

In  a  contract  concluded  between  persons  who  are  in  the  same  country,  a  natural  person 
who would have capacity under the law of that country may invoke his incapacity resulting 
from the law of another country, only if the other party to the contract was aware of that 
incapacity at the time of the conclusion of the contract or was not aware thereof as a result 
of negligence. 

It  should  be  recalled  that  the  Rome  I  Regulation  applies  more  broadly  than  solely  to 
commercial contracts but also to enforceable gifts. The relevance of the Article 13 defence 
is therefore likely to increase.  

The  Rome  I  Regulation  does  not  contain  any  private  international  law  rules  relating  to 
agency or powers of attorney. Art. 7 of the EU Commission’s original proposal for a Rome I 
Regulation  was  intended  at  least  partly  to  harmonise  some  of  the  various  private 
international law rules and was based on the Hague Convention XXVII. However, it was not 
adopted in the final Rome I Regulation. 

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4. THE  EUROPEAN  UNION  AND  THE  SUCCESSION 

REGULATION  

KEY FINDING 


The  Succession  Regulation  also  deals  with  various  PIL  matters  regarding  capacity  in 
particular for dispositions of property upon death.  

When the EU Succession Regulation becomes fully effective on August 17, 2015, its effects 
on  Private  International  Law  for  succession  in  the  relevant  parts  of  the  EU  (i.e.  excluding 
Denmark, Ireland and the UK) will have a further impact on this fast changing area of the 
law. 

Art.  1.2(b)  of  the  Succession  Regulation  specifically  excludes  its  application  to  questions 
involving the status or legal capacity of natural persons. However, this is without prejudice 
to Art.23(2)(c) which deals with the capacity to inherit and to Art.26 which deals with the 
question of the capacity of the person making a disposition of property upon death [a Will 
or  Agreement  as  to  Succession]  to  make  such  a  disposition,  being  treated  as  one  of 
substantial validity. 

Generally  and  by  virtue  of  Art.23.2(c)  questions  as  to  the  capacity  to  inherit  will  be 
governed solely by the law applicable to the succession. 

Questions as to the capacity of a person making a Will, will be governed under Art.24.1 by 
the law which, under the Regulation, would have been applicable to the succession of the 
testator  if  he  had  died  on  the  day  on  which  the  Will  was  made.  A  valid  choice  of  law  can 
also be made under Art.22. 

Questions  as  to  the  capacity  of  a  person  making  an  Agreement  as  to  Succession  will  be 
governed under Art.25 by the law which, under the Regulation, would have been applicable 
to  the  succession  of  the  testator  if  he  had  died  on  the  day  on  which  the  Agreement  was 
concluded. A valid choice of law can also be made under Art.22. If the Agreement relates to 
the estate of more than one person, then under Art.25.2 the relevant law will be that with 
which the Agreement is most closely connected. 

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5. TAKING OF EVIDENCE 

Apostilles are often still required. 

KEY FINDING 


In relation to any cross border matter involving incapacity, it is likely that evidence will be 
required to be taken from outside the relevant jurisdiction. 

The Taking of Evidence Regulation, Council Regulation (EC) No 1206/2001 of May 28, 2001 
applies  to  a  Member  State  of  the  European  Union  (other  than  Denmark).  The  European 
Judicial Atlas in Civil Matters27 and Europa28 websites are useful resources if this Regulation 
is to be used. 

For Denmark and many other non EU jurisdictions the Hague Convention XX29 of March 18, 
1970 on the Taking of Evidence Abroad in Civil or Commercial Matters will apply.  

Whilst  Art.  41  of  Convention  XXXV,  makes  it  clear  that  all  documents  forwarded  or 
delivered  under  the  Convention  are  exempt  from  legalisation  or  any  analogous  formality, 
the Lagarde Report concludes30 that this means all written information furnished, all judicial 
and administrative decisions, as well as certificates delivered in accordance with Art. 38.  

However,  Art.  41  may  not  exempt  individual  powers  of  representation  from  the  need  for 
legalisation prior to recognition in another jurisdiction. 

27 

http://ec.europa.eu/justice_home/judicialatlascivil/html/te_information_en.htm?countrySession=4& 

28

http://europa.eu/legislation_summaries/justice_freedom_security/judicial_cooperation_in_civil_matters/l33130_
 

en.htm
 
29 

http://www.hcch.net/index_en.php?act=conventions.text&cid=82
 

30 

At 150 on p 70.
 

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6. CONVENTION XXXV AND ITS WEAKNESSES 

KEY FINDINGS 


  Convention XXXV does have a number of weaknesses.  

 

In particular, a Power of Representation is not a Protective Measure 

In a European context, a Hague convention can be unsatisfactory. The definitions of 
“Habitual residence”, “impairment or insufficiency of faculties” or “protective measures” are 
not necessarily the same in each Member State. 

The fact that Convention XXXV only applies to Powers of Representation once the donor 
cannot protect his interests as a result of an impairment or insufficiency of his personal 
faculties, is an inherent weakness. Third parties find it impossible to establish easily 
whether under the applicable law, circumstances have arisen so that Convention XXXV 
actually applies to the Power of Representation. 

Even if it is clear that such circumstances have arisen, it can be difficult for third parties to 
understand and accept a Power of Representation created in a foreign language under the 
law of another Member State. 

As para.19 of the Lagarde Report states: “Finally, it should be pointed out that the text 
only concerns the protection of adults when this gives rise or has given rise to measures of 
protection. The validity of instruments executed by a person whose personal faculties are 
impaired but who has not been made the object of a measure of protection remains outside 
the scope of the Convention. Such validity is in fact on the borderline between capacity and 
consent, and therefore, in accordance with juridical categories, between personal status 
and juridical acts, which the future Convention is not intended to regulate.” 

Thus since a Power of Representation is not a Protective Measure, it is not possible to 
obtain a court order under Chap.IV of Convention XXXV to authenticate the Power and 
ensure its acceptance and enforcement across borders.  

The fact that Convention XXXV does not cross over the borderline into personal status, is a 
severe weakness and limit on the usefulness of Convention XXXV. The lack of any 
mechanism to authenticate Powers of Representation and persuade relevant third parties as 
to the validity of such a Power is a huge practical disadvantage. 

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7. OTHER PRACTICAL PROBLEMS 

KEY FINDING 


The  law  of  England  &  Wales  generally  prohibits  sub-delegation,  and  in  a  cross-border 
context, this can create practical problems. 

No Sub-delegation 

United Kingdom Powers of Representation are created against the backdrop of the laws of 
Scotland, England & Wales and of Northern Ireland. Under these laws, deeds and other 
authentic acts can be signed “in escrow” or in readiness some time before they are to be 
dated, used and become effective. 

Accordingly, it is never necessary for Representatives to be able to sub-delegate their 
power, and this is generally prohibited under the relevant laws in the United Kingdom. This 
causes severe difficulties cross-border, since in relation to the sale of any land it is often 
most convenient to be able to grant a specific power of representation to enable the sale to 
occur. Under UK Powers of Representation, since this is not possible, either the 
Representative must personally travel to the completion meeting to sign the deed on behalf 
of the incapax or a separate application to the court must be made. 

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8. FUTURE ACTIONS 

KEY FINDINGS 


  Member States should be encouraged to ratify Convention XXXV. 

  An EU Regulation in this area would be valuable, if legal competence exists. 

  A form of European Power of Representation would be extremely useful.  

  More Information also needs to be made easily available to the Citizen. 

8.1.  Convention XXXV 

The EU Parliament Resolution P6 TA(2008)0638 of December 18, 2008 at para. 4 calls on 
the EU Commission to assess the option of the accession of the Community as a whole to 
the  Hague  Convention  and  suggests  that  this  could  be  an  area  of  enhanced  cooperation 
between  Member  States.  The  EU  Commission  Action  Plan  of  April  2010  implementing  the 
Stockholm  Programme  COM(2010)  171  refers  to  the  desirability  of  EU  Member  states 
acceding to Convention XXXV and that in 2014 the Commission is to report as to the need 
for additional proposals. 

STEP would support the Parliament Resolution and has been pressing Member States to 
ratify Convention XXXV. The failure of the United Kingdom to ratify Convention XXXV in 
relation to England & Wales appears particularly parsimonious. 

8.2.  Regulation 

STEP would also support moves to convert Convention XXXV into an EU Regulation so as to 
harmonise the individual definitions and place it under the jurisdiction of the European 
Court of Justice and extend its scope into the sphere of personal status and acceptance and 
enforcement of Powers of Representation. 

8.3.  A European Power of Representation 

Questions as to the circumstances in which and how the Convention applies at the edges of 
classifications  of  wills  and  succession  remain.  The  practical  problems  for  citizens  in  using 
Convention XXXV are not inconsiderable. 

A most useful practical measure would be the creation under such an EU Regulation of a 
form of European Power of Representation (EPR). The creation of a form of EPR which could 
be easily understood and recognised throughout the European Union would reduce many 
existing practical problems. It would be most helpful if the EPR could be used both before 
and after a person as a result of an impairment or insufficiency of his personal faculties can 
no longer protect his interests. It would also be helpful if the EPR permitted sub-delegation 
across the EU. 

8.4.  Information 

STEP would also propose that information should be more readily available on the internet 
as to the internal law relating to incapacity in individual Member States, in order to provide 
assistance to individual citizens. 

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As the number of older EU citizens increases, these issues will become ever more relevant. 
The EU Year of Citizens, would be a good year to make progress on these issues. 

23
 

 
 
 
 
 
 
 
 
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978-92-823-4964-9

Doi: 10.2861/41789