The strict standards of a Lasting Power of Attorney

July 18, 2019

Wills and Probate

The strict standards of a Lasting Power of Attorney

In February 2019, the case of Office of the Public Guardian v PGO & Ors, Re: BGO [2019] EWCOP 13 reached a conclusion. This case demonstrates how high the standards of precision are for a correctly drafted Lasting Powers of Attorney (LPA).

In April 2016 an elderly lady (who is referred to as P) made two LPAs, for both Property & Financial Affairs and Health & Welfare. P appointed her husband and two solicitors as her attorneys and the LPAs were duly registered with the Office of the Public Guardian (OPG).

P then lost capacity and her attorneys began using her LPAs to help her manage her affairs. A financial institution noticed that P’s signature had been witnessed by one of the attorneys. This is a breach of regulations and should have prevented the LPA from being registered. This was brought to the attention of OPG who then asked the Court of Protection to rule on whether the LPAs could be used.

The Court looked at Regulation 9 of the Lasting Power of Attorney, Enduring Power of Attorney and Public Guardian Regulations 2007 (as amended), which states that an attorney is only allowed to witness the signature of another attorney, and not the donor themself (who is in this case P). This was the rule which had been broken when one of the attorneys witnessed P’s signature. The LPA was deemed to be invalid.

This meant that the LPA had no authority and the attorneys could not use it. The OPG was instructed to cancel the LPA immediately.

The parties could still make an application for a Deputyship Order to manage the affairs of P. The Court noted that P’s wishes and feelings were imperative and that they would take into account the importance of her previous attorneys when the Deputyship application was made.

Originally, P gave her attorneys the power to refuse life sustaining treatment on her behalf in her LPAs. However, the Court has no authority to grant such power. Even though the cancelled LPAs could be replaced with a Deputyship Order, the attorneys would have less power than P wanted to give them.

The underlying principle of the Mental Capacity Act 2005 is that “…respect must be given wherever possible to the donor’s autonomy”. This means that the Court had to consider very seriously how much power P wanted to give to her attorneys.  In her judgement, and in consideration of this point, HHJ Hilder stated the following:

“Lasting Powers of Attorney are powerful documents and inevitably therefore there will be those who seek to obtain powers wrongfully. There is no suggestion of such wrongful intent in the matter currently before me but, in different circumstances, insistence on an independent witness to the Donor’s signature is itself an important safeguard for the expression of genuinely autonomous decisions.”

HMG Law LLP can assist with drafting and execution Lasting Powers of Attorney, applying for and execution of deputyship orders, and the management of the affairs of someone who is unable to do so themself.

Please get in touch with Daniel McGurk on 01865 255620 if you require our advice and assistance.

posted by Daniel McGurk | July 18 2019