Below is a summary of orders made by the Court of Protection under the Mental Capacity Act in LPA cases. NB there was no written judgment in any of the following cases.

Severance of restrictions incompatible with a Health and Welfare LPA

Re Azancot (an order of the Senior Judge made on 27 May 2009)
The donor of a personal welfare LPA inserted a restriction that her replacement attorneys "may only act under this power in the event that the donor is physically or mentally incapacitated and there is written medical evidence to that effect".  The words "physically or" were severed on the application of the Public Guardian, as the effect of section 11(7) of the MCA is that a personal welfare attorney may not make a decision unless the donor lacks mental capacity to make it.

Severance of restrictions incompatible with a joint and several appointment

Re Jenkins (an order of the Senior Judge made on 2 September 2008)
The donor had appointed the attorneys of a property and affairs LPA to act “together and independently”. She then directed that they must act together in relation to any bills, payments or costs exceeding £2,000 in any one calendar month and in relation to any single payment greater than £1,000 in any calendar month. The donor had also appointed a replacement attorney, and directed that she should act if the original attorneys were “not available through travel or living abroad or any other circumstances that may prevent or restrict their capacity to act on my behalf as attorneys”.

The court ordered the severance of both clauses, on the application of the Public Guardian. The directions in the first clause were incompatible with an appointment to act “together and independently”. The directions in the second clause were invalid because a replacement attorney may only act on the occurrence of an event mentioned in section 13(6)(a) to (d) of the MCA, for example where an original attorney disclaims, dies or loses mental capacity.

Re P (an order of the Senior Judge made on 9 June 2009)
The donor appointed three attorneys to act jointly and severally, and imposed the following restriction:  "I require that two attorneys must act at any one time so that no attorney may act alone."  On the application of the Public Guardian the court severed the restriction on the ground that it was ineffective as part of an LPA.

Re Bratt (an order made by the Senior Judge on 14 September 2009)
The donor appointed two attorneys, A and B, to act jointly and severally, and directed that "B is only to act as attorney in the event of A being physically or mentally incapable of acting in this capacity".  On the application of the Public Guardian this provision was severed as being inconsistent with a joint and several appointment.  The Senior Judge added that, to have achieved the desired objective, the donor should instead have appointed B to be a replacement attorney.

Re D'Argenio (an order of the Senior Judge made on 9 June 2010)
The donor made a property and financial affairs LPA and a health and welfare LPA. In both she appointed six attorneys to act jointly and severally. In the property and affairs LPA she imposed the following restriction: "My atorneys must act jointly in relation to decisions about selling my house. They may act jointly and severally in everything else." In the health and welfare LPA she imposed the following restriction: "My attorneys must act jointly in relation to decisions I have authorised them to make about life-sustaining treatment and where I live. They may act jointly and severally for everything else." On the application of the Public Guardian the court severed both restrictions as being incompatible with a joint and several appointment.

Re P Crook (an order of the Senior Judge made on 2 July 2010)
The donor appointed one primary attorney and three replacement attorneys, the latter to act jointly and severally. He then imposed the following restriction: "Provided I have more than two attorneys capable of acting under this power then any decision as to the exercise of any power or discretion reached by the majority of such attorneys (acting in their capacity as attorneys) shall bind all my attorneys to the extent that no attorney of mine can take issue with the decision reached by that majority." On the application of the Public Guardian the court severed the restriction as being incompatible with a joint and several appointment.

Re Davies (an order of the Senior Judge made on 5 July 2010)
The donor appointed two attorneys, A and B, to act jointly and severally. He then imposed the following restriction: "If in the unlikely event of A and B not being wholly in agreement, B is to defer to the wishes of A." On the application of the Public Guardian the court severed the restriction as being incompatible with a joint and several appointment.

Re Cotterell (an order made by the Senior Judge on 3 August 2010)
The donor appointed two attorneys to act jointly and severally, and imposed the following restriction: "My second named attorney may only act as my attorney if a general medical practitioner certifies that I am mentally incapable of managing my affairs and in this instance, if my first attorney is alive and mentally capable, may only act on my behalf in relation to a sale of the property which at that time is deemed to be my principal place of residence. If however my said first named attorney has passed away or is deemed by a general medical practitioner as incapable then my second named attorney may act generally on my behalf subject to no restrictions." On the application of the Public Guardian the restriction was severed as being incompatible with a joint and several appointment.

Re Lan (an order of the Senior Judge made on 10 August 2010)
The donor appointed two attorneys to act jointly and severally. She then imposed the following restriction: "Any major decisions should be discussed between my attorneys so that a joint agreement to the matter can be achieved." On the application of the Public Guardian this restriction was severed as being incompatible with a joint and several appointment.

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Severance of restrictions incompatible with a joint appointment

Re Clarke (an order of the Senior Judge made on 18 November 2009)
The donor appointed three attorneys, A (his wife), B, and C, to be his attorneys. They were appointed to act jointly in some matters and jointly and severally in others.  He then stated that the attorneys were to act independently for transactions not exceeding £5,000 "but together in respect of all other decisions subject to my wife A's opinion prevailing in the event that my attorneys are not unanimous in any decision involving property or expenditure exceeding £5,000". On the application of the Public Guardian, the words "subject to my wife A's opinion" onwards were severed on the ground that they purported to facilitate one of the three attorneys being able to act independently in relation to matters that had been specified as subject to the joint decision of the attorneys.

Re Warner (an order of the Senior Judge made on 31 August 2010)
The donor made an LPA appointing A as the original attorney and B and C as replacement attorneys, the latter to act jointly. She imposed the following restriction in relation to the replacement attorneys: "If for any reason one of my replacement attorneys is unable or unwilling to act, the remaining replacement attorney is then permitted to act solely under my LPA". On the application of the Public Guardian the restriction was severed as being incompatible with the joint appointment of the replacement attorneys.

Severance of restrictions fettering an attorney's authority

Re Begum (an order of the Senior Judge made on 24 April 2008)
On the application of the Public Guardian, the court directed the severance from a Property and Affairs LPA instrument of the following clauses, on the ground that they were ineffective as part of an LPA:

  1. All decisions about the use or disposal of my property and financial resources must be driven by what my Personal Welfare Lasting Power of Attorney(s) believe will support my long term interests.
  2. Any decisions affecting assets (individually or together) worth more than £5,000 at any one time must be discussed and agreed with Dr X.
  3. In the event of there being any disagreement between my Personal Welfare Lasting Power of Attorney(s) and/or Dr X this should be resolved by these parties appointing an independent advocate to adjudicate.

Re Reading (an order of the Senior Judge made on 25 June 2009)
The donor appointed her husband and two of her children as original attorneys and a third child as replacement attorney. She added a restriction to the effect that, if her husband should predecease her, any decisions "must be agreed by all four of my children". The fourth child had not been appointed as attorney or replacement attorney. On the application of the Public Guardian the restriction was severed as being ineffective as part of an LPA, because it was not open to the donor to require that a person who was not an attorney should join in the making of decisions by the attorneys.

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Severance of invalid restrictions as to when a replacement attorney may act

Re Jenkins (an order of the Senior Judge made on 2 September 2008)
The donor had appointed the attorneys of a property and affairs LPA to act “together and independently”. She then directed that they must act together in relation to any bills, payments or costs exceeding £2,000 in any one calendar month and in relation to any single payment greater than £1,000 in any calendar month. The donor had also appointed a replacement attorney, and directed that she should act if the original attorneys were “not available through travel or living abroad or any other circumstances that may prevent or restrict their capacity to act on my behalf as attorneys”.

The court ordered the severance of both clauses, on the application of the Public Guardian. The directions in the first clause were incompatible with an appointment to act “together and independently”. The directions in the second clause were invalid because a replacement attorney may only act on the occurrence of an event mentioned in section 13(6)(a) to (d) of the MCA, for example where an original attorney disclaims, dies or loses mental capacity.

Re Patel (an order of the Senior Judge made on 1 December 2008)
The donor appointed a replacement attorney to act if the original attorney should be “mentally or physically incapable” or if the original attorney “is not in England at any time that my personal or financial affairs require attention”. The words in bold were severed on the application of the Public Guardian on the ground that a replacement attorney may only act on the occurrence of an event mentioned in section 13(6)(a) to (d) of the MCA, for example where an original attorney disclaims, dies or loses mental capacity.

Re Bates (an order of the Senior Judge made on 3 December 2008)
The donor appointed two original attorneys and a replacement attorney, who would assume office in the following circumstances: “She may act at any time at the election of either attorney”. These words were severed on the application of the Public Guardian on the ground that a replacement attorney may only act on the occurrence of an event mentioned in section 13(6)(a) to (d) of the MCA, for example where an original attorney disclaims, dies or loses mental capacity.

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Severance of invalid restrictions relating to gifts

Re Sykes (an order of the Senior Judge made on 9 July 2009)
The donor of a property and affairs LPA imposed a restriction stating that no gifts of any of her assets should be made other than "annual or monthly gifts already being made by me at the date of my signing this LPA by regular bank standing orders or direct debits".  On the application of the Public Guardian the court severed this restriction on the ground that the gifts envisaged by the donor exceeded the attorney's authority to make gifts as set out in section 12 of the MCA 2005.

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Severance of unreasonable, impractical or uncertain conditions

Re Saunders (an order of the Senior Judge made on 30 March 2010)
The donor appointed two attorneys and a replacement attorney.  He stated that the replacement should act only if the power given to the original attorneys "is revoked by me" or terminated by death, disclaimer or incapacity.  He further stated that the power of his attorneys "shall only come into force only if and when my attorneys have presented medical evidence to the Court and the Court are satisfied that I am or am becoming incapable by reason of mental disorder of managing and administering my property and affairs".  On the application of the Public Guardian the condition requiring the attorneys to present medical evidence to the court was severed because, although it was not invalid, it imposed an unreasonable and impractical fetter on the attorneys.  The words "is revoked by me" were also severed as being incompatible with section 10(8)(b) of the MCA (revocation of an attorney's appointment is not an event upon which a replacement attorney may act).

Re Thrussell (an order of the Senior Judge made on 12 October 2010)
The donor directed her attorneys to consult with X "in respect of any major decision". On the application of the Public Guardian the court severed this provision on the grounds that it was so uncertain as to be unworkable.

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Whether the instrument is in prescribed form – unticked boxes

Re Nazran (an order of the Senior Judge made on 27 June 2008)
The certificate provider had not completed the first two boxes in Part B of the instrument to confirm that he was acting independently of the donor, was not ineligible to provide a certificate, and was aged 18 or over. The attorneys applied to court for a declaration that the instrument was a valid LPA or, alternatively, that the instrument was to be treated as valid under MCA Schedule 1 paragraph 3(2). [Paragraph 3(2) provides that the court may declare that an instrument which is not in the prescribed form may be treated as if it were, if it is satisfied that the persons executing the instrument intended it to create a lasting power of attorney].

The court, in the exercise of its discretion under Schedule 1 paragraph 3(2), declared that the instrument was to be treated as if it were an LPA and registered accordingly. The Public Guardian does not have this discretion.

Re Ker (an order of the Senior Judge made on 21 September 2009)
The donor in Part A of the LPA form omitted to tick the box to confirm that he had chosen his certificate provider himself.  The Public Guardian refused registration on the ground that the instrument was not in prescribed form.  On the attorney's application, the court exercised its discretion under paragraph 3(2) of Schedule 1 to the MCA 2005 and declared that the instrument, although not in the prescribed form, was to be treated as if it were a lasting power of attorney.  Registration was directed accordingly.

Re Murdoch (an order of the Senior Judge made on 30 October 2009)
The donor executed an instrument intended to be a personal welfare LPA. It contained the following defects: (i) the certificate provider had failed to tick the  first two mandatory boxes in Part B, (ii) the attorney had failed to tick any of the boxes in Part C, although he had dated and executed it, and (iii) the replacement attorney had ticked the appropriate boxes in his Part C but had not dated or executed it. The Public Guardian refused to register the instrument, and the donor subsequently lost capacity.  On the attorney's application, the court directed the Public Guardian not to register the instrument, because "the errors in its execution are too fundamental".

Re Helmsley (an order made by the Senior Judge on 30 November 2009)
The donor executed two instruments intended to be LPAs.  In Part A of both instruments she omitted to tick the box to confirm that she gave her attorneys authority to act on her behalf in circumstances when she lacked capacity.  The Public Guardian refused registration on the ground that the instruments were not in prescribed form.  On the attorneys' application, the court exercised its discretion under paragraph 3(2) of Schedule 1 of the MCA 2005 and declared that the instruments, although not in prescribed form, were to be treated as if they were.  Registration was directed accordingly.

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Defective execution of the instrument

Re Sporne (an order of District Judge S E Rogers made on 13 October 2009)
The instrument had two defects: (i) the certificate provider had failed to tick the first two mandatory boxes in Part B, and (ii) the attorney had executed Part C before the certificate provider had signed Part B, contrary to Regulation 9 of the LPA, EPA and PG Regulations 2007. The Public Guardian's normal practice in such a case is to request fresh Parts B and C, but the donor had lost capacity. The attorney applied to court for the determination of the validity of the instrument. The court order recorded that, while the court could have exercised its discretion under paragraph 3(2) of Schedule 1 of the MCA in respect of the defect in Part B of the instrument, it could not exercise any discretion to validate a significant procedural error in respect of the requirements for the completion and execution of Parts A, B and C. It further recorded that the errors could not now be rectified as the donor had lost capacity. The court, therefore, refused to direct registration of the instrument. [The terms of paragraph 3(2) of Schedule 1 of the MCA are set out in the summary of Re Nazran above].

Re M Crook (an order of the Senior Judge made on 16 July 2010)
The donor's Health and Welfare LPA included an invalid restriction. A further defect was that she had not entered the date on which she executed Part A of the instrument in section 10, nor had she dated section 5 when selecting Option A. The Public Guardian does not regard a failure to execute the Options section as invalidating the instrument, but a failure to date Part A will normally do so. However, in this case the Public Guardian was prepared to infer that both sections had been executed on 13 October 2009, as Continuation Sheet A1 had been signed on that date, and so was the Part B certificate. In addition, the certificate provider had witnessed the Part A signatures. When applying for severance of the invalid restriction, the Public Guardian requested the court to direct that Part A was to be treated as having been signed on 13 October 2009, to avoid any challenges by third parties. The court accordingly included a provision in the order to the effect that sections 5 and 10 of Part A were to be treated as having been executed on 13 October 2009.

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Attorney's date of birth missing

Re John (an order of District Judge Ralton made on 14 October 2010)
The donor made an LPA using the "old" form prescribed in 2007. She appointed an original attorney and a replacement attorney, but the replacement attorney's Part C omitted his date of birth, and it could not be inferred from the instrument that he was at least 18. The usual practice of the Public Guardian in such a case is to request a fresh Part C, but this could not be done because the donor had lost capacity (see Re Sporne, above). The instrument was registered, with registration being limited to the original attorney, but the attorney then applied to court to have the defective Part C "reinstated". The Public Guardian was joined as a party.

The court ruled that the LPA was not in the prescribed form because of the failure to include the replacement attorney's date of birth. As the court was satisfied on the evidence that the replacement attorney was in fact at least 18, it exercised its discretion under paragraph 3(2) of Schedule 1 of the MCA (which is set out in the summary of Re Nazran, above) to declare that the LPA was to be treated as if it were in the precribed form.

(Note: in the case of LPAs made using the 2009 prescribed form, the attorney's date of birth must be included in Part A, so the practice of requesting a fresh Part C is not applicable, although limited registration may be possible if there is another attorney whose date of birth has been given.) 

Eligibility of Certficate Provider

Re Kittle (a judgment of the Senior Judge given on 1 December 2009)
Regulation 8(3) of the LPA, EPA and PG Regulations 2007 sets out categories of persons who cannot act as certificate provider. Included in the list is "a family member" of the donor or of the attorney (or of the owner, director, manager or employee of any care home in which the donor is living when the instrument is executed).  In this case the certificate provider was the donor's first cousin.  The Public Guardian declined to register the instrument on the ground that a first cousin was a family member of the donor. The court ruled that a first cousin is not a family member, and so the LPA was valid.

You can view the full judgment in the section Other orders of interest made by the Court of Protection since 1 October 2007.

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Attorney or replacement attorney as a “named person”

Re Howarth (an order of the Senior Judge made on 29 July 2008)
The donor had named the replacement attorney as the only person to be notified of an application to register. MCA Schedule 1 paragraph 2(3) provides that a person who is “appointed as donee under the instrument” may not be a named person. If there was no effective named person, the instrument could only be valid if it contained two Part B certificates, but it contained only one. On the application of the Public Guardian the court directed the severance of the appointment of the replacement attorney on the ground that a replacement attorney was a person “appointed as donee under the instrument” who could not, therefore, be a named person. As the appointment of the replacement attorney was severed, the named person was not an attorney and so the instrument could be registered.

Re McAdam (an order of the Senior Judge made on 29 March 2010)
The donor had named X, one of two original attorneys (who had been appointed to act jointly and severally), as the only named person.  On the application of the Public Guardian the court severed the appointment of X as attorney on the ground that the MCA does not permit an attorney to be a named person.  The instrument was directed to be registered as an LPA appointing only the other attorney.

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Replacement for replacement attorney

Re Baldwin (an order made by the Senior Judge on 14 May 2009) The donor appointed X as original attorney, Y as the replacement for X, and Z as the replacement for Y if Y was unable or unwilling to act. On the application of the Public Guardian the court directed the severance of the appointment of Z on the ground that the MCA does not permit a donor to appoint a person to take over as a second replacement attorney if the first replacement attorney starts to act and then becomes unable to act.

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Appointment of substitute by an attorney

Re Swift (an order of the Senior Judge made on 30 March 2010)
The donor had been appointed to act as attorney under LPAs made by his wife.  In his own LPA for property and financial affairs he stated as follows: "In the event that I become incapacitated and am unable to take decisions in my role as Attorney to my wife, I appoint both my Attorneys as Guardians of my wife in order that they may, together, take decisions about her property and affairs."  He included an equivalent provision in his LPA for health and welfare.  On the application of the Public Guardian the court severed these provisions as being ineffective because the MCA does not permit an attorney to appoint a substitute or successor to himself.

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Where attorney present when certificate provider interviews the donor

Re Gibbs (an order of the Senior Judge made on 9 September 2008)
The certificate provider ticked the box to confirm that he had discussed the LPA with the donor and that the attorneys were not present, and also ticked the box to say that the LPA had been discussed with the donor in the presence of other persons, identified as the attorneys. The court directed that the LPA was valid (the certificate provider having confirmed by letter that he had interviewed the donor on her own as well as with the attorneys present).

Re Bullock (an order made by the Senior Judge on 15 December 2009)
The certificate providers did not tick the box to confirm that they had discussed the LPA with the donor and that the attorney was not present.  The donor was in hospital and the certificate providers had discussed the LPA with the donor at his bedside, the attorney being present throughout.  The Public Guardian refused registration on the ground that the instrument was not in prescribed form.  The court, in the exercise of its discretion, declared under paragraph 3(2) of Schedule 1 of the MCA 2005 that the instrument, which was not in the prescribed form, should be treated as if it were.  Registration was directed accordingly.

[Note: There is no such requirement in the new LPA prescribed forms introduced on 1 October 2009]

Capacity to make an LPA

Re Collis (a judgment of the Senior Judge given on 27 October 2010)
An application was made to the court to direct the Public Guardian to cancel the registration of an LPA on the grounds that the instrument was not a valid LPA because the Donor lacked capacity to create an LPA at the date of execution. In the course of his judgment the Senior Judge set out the law relating to capacity to create an LPA.

You can view an extract from the judgment in the section 'Other orders of interest made by the Court of Protection since 1 October 2007.'

 

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