International living and mental capacity: Why jurisdiction matters

Danielle Cahill, Partner, and Abbie Mattocks, Solicitor, in our Private Wealth Disputes team, discusses the recent Court of Protection case of Neath Port Talbot County Borough Council v CK & Ors [2025] and its significant for international clients.

A recent Court of Protection decision highlights the complex legal issues that can arise where an individual with connections to more than one country loses mental capacity. In Neath Port Talbot County Borough Council v CK & Ors [2025] EWCOP 47, the court was required to consider which country’s courts had jurisdiction to make decisions about an individual’s residence and care.

Summary of the case

The individual at the centre of this matter, CK, had lived in Spain for around 33 years, where he had built his life with his wife. CK owned property in Spain, he held bank accounts there, ran a business and obtained residency.

After experiencing a stroke, CK returned to his home country of Wales in 2018 to visit his son. During his time in Wales, he experienced multiple transient ischemic attacks (mini strokes) and associated falls. He was admitted to hospital and remained there for over a month, after which he returned to Spain.

Unfortunately, CK’s health deteriorated further, which increased his care and support needs. Arrangements were made for him to return to Wales to live in a care home. There was no evidence that CK wished or intended to return to Wales, and he expressed a wish to return to Spain once he was in the care home.

The key question the Court of Protection had to consider was not simply where CK should live, but firstly which country’s courts had authority to make decisions for CK. The judge considered whether the factual landscape that had developed during CK’s time in a care home in Wales had altered to the extent that his habitual residence could be said to lie in (England and) Wales, rather than Spain.

Although CK’s expressed wishes to return to Spain were clear, the Court concluded that they formed an important part of the best interests assessment, but they were outweighed by the practical realities of his circumstances and welfare needs.

The Court of Protection ultimately held that:

• CK lacked capacity to make decisions about his residence and care arrangements;
• It was not in CK’s best interests to return to Spain; and
• CK should remain living in the care home in Wales.

Key lessons

For internationally mobile individuals, this Court of Protection case highlights the legal and practical risks that can arise when capacity issues intersect with cross-border living arrangements.

While many individuals divide their time between countries, have homes abroad, or plan retirement moves later in their life, it is not uncommon for families to find themselves in similar situations.

When the issue of capacity is raised, disputes can quickly spark regarding where certain decisions should be made, which country has jurisdiction to make those decisions and whether residence in a certain country is realistically achievable.

This case therefore highlights:

• The importance of early capacity assessments during international moves, particularly where an older individual seeks a permanent international move.
• The legal complexity of determining habitual residence and jurisdiction where an individual lives a global lifestyle with multinational connections.
• An individual’s expressed wishes will not necessarily be determinative where practical constraints make residence in, or return to, a particular country unfeasible.
• The increasing relevance of these issues, particularly in light of modern family dynamics.

Accordingly, for those with international lifestyles, proactive planning is critical. Taking advice early on capacity, appointing powers of attorney to manage your property and affairs and health and welfare, and jurisdictional asset planning can help to avoid costly and emotional disputes if capacity later becomes an issue. Equally, should a dispute arise, it is important to seek specialist legal advice at the earliest opportunity.