The Court of Protection has declared that a donor of an English lasting power of attorney (LPA) is within their rights to impose any number of conditions, specifying when and how the power can be used.
Lush J made the decision in Re XY (2015 EWCOP 35). The facts of the case are that the donor was a wealthy man in his 70s who owned several properties in several countries. Being of a cautious nature he executed an LPA for property and financial affairs, but wanted to ensure that extensive controls were in place so that he could continue to remain in control of his own assets.
The safeguards were drafted by the leading London law firm Speechly Bircham with the intention of preventing any hasty decisions or decisions being made where there was any doubt as to his incapacity. The safeguards included, amongst other things, forbidding the attorneys to make a decision on his behalf unless two psychiatrists agreed that he lacked capacity; even then they were only able to act for him if 60 days had passed since his loss of capacity. The safeguards were so extensive that the standard LPA form included seven continuation sheets! He also appointed a college friend as his ‘protector’ with the power to overrule the psychiatrists’ certification.
Upon submission to the Office of the Public Guardian (OPG) there was a refusal to register the document, on the grounds that the conditions imposed an unreasonable fetter on the attorneys’ power to act and were, therefore, ineffective as part of an LPA.
Alan Eccles, the Public Guardian himself, was unwilling to reconsider the decision and so the donor applied to the Court of Protection for a declaration that his LPA was valid as drafted, and asked for an order directing the Public Guardian to register it.
The OPG defended its position by relying on Schedule 1, paragraph 11(3)(b) of the Mental Capacity Act 2005 which states that the OPG must not register an instrument containing provisions which would be ineffective as part of an LPA. The OPG regarded the donor’s safeguards as unworkable in this sense.
The donor’s counsel submitted an argument that “it is no part of the OPG’s statutory duties to police the practicality or utility of individual aspects of an LPA. To be ineffective as part of a lasting power of attorney under the MCA 2005, a provision would have to be not capable of taking effect. It was not enough that they posed practical difficulties.” – which Lush J accepted.
The Court of Protection ruled that the OPG had no right to make a ‘paternalistic judgement’ on behalf of the wealthy donor and ordered the OPG to register the LPA.
The judge also noted that the new LPA form that comes into force on 1 July deals with the same difficulty. It asks the donor ‘When can your attorneys make decisions?’, the permitted answers being ‘As soon as my LPA has been registered (and also when I don’t have mental capacity)’, and ‘Only when I do not have capacity.’ On this form, beneath the second option, is a ‘health warning’ stating “Be careful — this can make your LPA a lot less useful. Your attorneys might be asked to prove you do not have mental capacity each time they try to use this LPA.” Essentially, said Lush, “this warning is what…this case…. is all about.”
