Q&As

If a person who lacks capacity resides in India, would the Court of Protection have any jurisdiction to appoint a deputy, if there is potential for the person to move to the UK?

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Published on LexisPSL on 25/10/2017

The following Private Client Q&A provides comprehensive and up to date legal information covering:

  • If a person who lacks capacity resides in India, would the Court of Protection have any jurisdiction to appoint a deputy, if there is potential for the person to move to the UK?

If a person who lacks capacity resides in India, would the Court of Protection have any jurisdiction to appoint a deputy, if there is potential for the person to move to the UK?

In answering this Q&A, we refer you to Practice Note: International issues relating to the protection of vulnerable adults, which sets out in detail the jurisdiction and role of the Court of Protection in cross border matters. See also section 63 of the Mental Capacity Act 2005 (MCA 2005) and MCA 2005, Sch 3.

These provisions and their interaction with the laws of other jurisdictions are complex but the key points relevant to the situation described in your question are summarised below.

Where a protected person (P) is habitually resident outside England and Wales, then the Court of Protection:

  1. is able to exercise its 'primary' jurisdiction over any assets held by P in England and Wales (MCA 2005, Sch 3, Pt 2, para 7(1)(b)), although the relevant foreign court may also have concurrent jurisdiction over these assets and questions of forum conveniens under rule 87 of the Court of Protection Rules 2007 (as amended by the Court of Protection (Amendment) Rules 2015) (COPR 2007), SI 2007/1744 (see also the case of Re: PO; JO v GO)

  2. is able to exercise a 'secondary' jurisdiction

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