These days, more and more people are being required to look after elderly relatives who lack mental capacity. An increasing number of these relatives either own homes in the UK and abroad, or have chosen to live abroad in their old age, prior to losing mental capacity.
If there is a dispute between family members over whether the care being provided is appropriate, it is important to remember that a relative cannot simply be removed from their country of residence without consideration of a number of factors. This was highlighted by the Court of Protection (COP) in December 2019, when it considered the case of TD (and another) v KD (and another) [2019] EWCOP 56.
TD v KD concerned a man with dementia (QD) who had been living in Spain with his second wife (KD) for over 7 years. KD had been caring for QD in Spain and applied to the Spanish authorities for his legal guardianship. While this application was being considered, QD’s children (TD) had concerns that QD was being inappropriately cared for by KD and, without consultation with KD, decided to remove QD from Spain and take him to England. TD then made an application to the COP seeking an Order that QD: reside at a care home in England, not return to Spain and only have supervised contact with KD. KD opposed this application and challenged TD’s ability to remove QD from Spain.
In considering whether to deal with TD’s application, the COP took into particular account that QD had, prior to losing his mental capacity, made the clear choice to make Spain his permanent home. QD was integrated into the Spanish community and received health care in Spain. QD’s removal to England was achieved “by stealth” and was “wrongful”; TD could instead have notified the police, social services or KD directly. The COP decided that QD was accordingly not habitually resident in England and Wales and it could not deal with TD’s application on this basis.
The COP went on to consider whether the matter was sufficiently “urgent” to allow the COP to deal with the application and decided that it was not. This is because a substantive order was not necessary to avert an immediate threat to life or safety and there was no immediate need for further or other protection.
The COP nevertheless demonstrated a proactive approach and decided that QD could be brought under the protection of England and Wales until the authorities in Spain have determined the appropriate next steps.
This case highlights the importance of obtaining legal advice before removing a member of family from their country of residence and the need to ensure that the appropriate steps are taken to secure their safety.
If you have a matter which may require the Court of Protection’s involvement, or you would like some advice in relation to a dispute concerning mental incapacity, please contact our Dispute Resolution Team on DRTeam@herrington-carmichael.com or 01276 686222.
This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.
