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LPAs: will yours work? Court of Protection provides guidance on the content of lasting powers of attorney

View profile for Ian Bradshaw
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With people living longer, mental illnesses such as dementia and Alzheimer’s disease are on the increase and issues surrounding a person’s capacity are becoming evermore prevalent: consequently LPAs are becoming increasingly relevant.

A series of test cases have recently been heard in the Court of Protection on two discrete issues that have called into question the validity of certain lasting powers of attorney (“LPAs”). The cases of the Public Guardian v DA and the Public Guardian v BP [2018] EWCOP 26 have attempted to shed light on some key issues relating to the preparation of LPAs.

LPAs

The Court of Protection defines an LPA as a “formal arrangement, undertaken by deed, whereby one person (the “donor”) entrusts to another (the “attorney” or the “donee”), authority to act in his or her name and on his or her behalf”. LPAs replaced the previous enduring powers of attorney when the Mental Capacity Act 2005 (the “Act”) came into force.

There are two types of LPA: a Property and Financial Affairs LPA and a Personal Health and Welfare LPA. Some examples of issues that can be dealt with under a Property and Financial Affairs LPA include making investment decisions, dealing with tax affairs, operating bank accounts and selling and purchasing property on the donor’s behalf. Some examples of issues that can be dealt with under a Personal Health and Welfare LPA include deciding where the donor lives, deciding with whom the donor has contact and giving or withholding consent to medical treatment.

In the LPA document a donor must decide how they wish their attorney to act and whether they wish to put any limits on the appointment (i.e. on the exercise of powers by the attorney). A donor must also adhere to the prescribed process and ensure the terms of the appointment are clear in order to put a valid LPA in place and all LPAs only become operative once they have been registered with the Office of the Public Guardian (“OPG”). If upon receipt of an application to register an LPA, the OPG is not satisfied that the correct procedure has been followed or that the LPA accords with the provisions of the Act, they will likely refuse to register the application. The OPG will either ask the applicant to amend the LPA or they may reject the application entirely. If the applicant wishes to object to such a rejection they will need to challenge the decision by bringing a case in the Court of Protection.  

The Public Guardian v DA and others [2018] EWCOP 26: assisted suicide and euthanasia

In the case of the Public Guardian v DA, the Court considered the effect of wording in an LPA directing or expressing the donor’s preference for suicide or assisted dying.

The issue arose when a donor had given instructions to their attorney/s that their life should be ended if certain circumstances arose. Examples of such circumstances included where the donor’s “pain and suffering was unbearable and there is no prospect for an improvement”; where the donor had “become incapacitated to the extent that I have no ability to affect or comprehend my situation or environment”; and where the donor had “a long-term diagnosis for a painful or incapacitating or undignified (…) condition”. In some of the LPAs, the donor had noted that presently there is no law in England and Wales which allows for assisted suicide and that they would wish for assisted suicide in cases of complete incapacity only if the act were to become legal.

In his judgment, Lord Justice Baker emphasised the distinction between giving an “instruction” in an LPA, and expressing a “preference”. The Act prescribes that attorneys do not have to follow a donor’s preferences, however they ought to keep them in mind. On the other hand, attorneys are obliged to follow a donor’s instructions exactly so that the donor’s autonomy is respected and upheld.

Baker LJ considered all 7 examples of the LPAs that were before him and which all included wording regarding the end of the donor’s life at the hands of an attorney. While he was mindful about respecting a donor’s autonomy, Baker LJ was very clear that wording in an LPA advocating euthanasia, regardless of whether it was an instruction or merely a preference, would be ineffective if it meant the attorney had to carry out, or even consider, an unlawful act.  

This was still the case even for those LPAs whereby the donor had expressed a wish that euthanasia should be carried out only if the law were to change and thus render euthanasia legal in the future. The judge felt that permitting an LPA to be registered containing such wording would give rise to “uncertainty and confusion”. In addition, if the law were to change on this particular area, it would be subjected to “detailed statutory provisions and guidance” by Parliament, meaning that it was not possible to predict what the law might in fact say, or how it could or would be put into practice.

The Public Guardian v BP and others [2018] EWCOP 26: multiple attorneys

In the case of the Public Guardian v BP, the Court considered appointments of more than one attorney and how those attorneys were capable of acting. A donor may appoint multiple attorneys to act and their appointment may be expressed to be:  

  1. joint (meaning attorneys must agree unanimously on every decision);
  2. joint and several (meaning attorneys can make decisions on their own or together); or
  3. joint in respect of some matters and joint and several in respect of others (meaning attorneys must agree unanimously on some decisions, but can make others on their own).

The Public Guardian presented a series of LPAs in which the donor had not properly specified one of the three categories. One of the LPAs in question, for example, requested that “if my spouse is capable of acting, my attorneys other than my spouse shall not act in any manner unless my spouse is unable to act on their own in that matter”. The Public Guardian said that this wording was unclear and inconsistent with the Act, since the wording meant a power could not be exercised jointly and severally.

Baker LJ held that the above three options were exhaustive and agreed that such wording would not create a valid LPA. The wording was severed from the LPA.

One of the other LPAs under review by the Court – a Property and Financial Affairs LPA – concerned wording that the donor’s principal attorney (her husband) was to obtain the consent of both her children before carrying out certain actions, including:

  • The sale of the family home;
  • The choice of a nursing home for the donor (if necessary); and
  • Spending more than £10,000 per annum of the donor’s money.

While items 1 and 3 were found to be valid (the children were not appointed as attorneys and the person who ultimately made any decision was the donor’s husband), the second item could not be upheld since it related to health and welfare and should therefore have been included in a Personal Health and Welfare LPA. The result was that the offending words were struck out as if they did not appear in the LPA.

These test cases provide useful and welcome clarification as to the need for certainty and conformity in LPAs. It is clear that the Public Guardian, and in turn the Court of Protection if faced with such a question, will be within their rights to refuse to register an LPA if it does not comply with the requisite guidance. Such refusal would be deeply concerning if the donor were to lose capacity in the period before the LPA is registered, potentially triggering the need for an application to the Court of Protection to obtain a deputyship order. We would be happy to advise on, and assist with the preparation of, both types of LPAs and the appointment of appropriate attorneys. We are also able to assist with registering LPAs with the OPG, and we have experience in dealing with applications to the Court of Protection.

This article was written by Ian Bradshaw, Partner, Private Client, with assistance from Lilly Whale, Trainee Solicitor.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.