court of protection

LPAs: OPG seeks clarification from Court of Protection on several issues

The Office of the Public Guardian (OPG) has sought clarification from the Court of Protection on several issues relating to the scope of a lasting power of attorney (LPA).

The OPG, which was appointed to oversee LPAs under the Mental Capacity Act 2005, has brought nine consolidated cased referring to a handful of frequently arising issues in the hope of clarification. These issues included majority rule, replacement attorneys, and lead donees.

Regarding lead donees, the OPG asked whether it is lawful to give primary power to one attorney ahead of other attorneys when appointed on a joint and several basis; and whether it is lawful to have joint and several appointments with instructions for attorneys to deal with separately defined areas of the donor’s affairs or include restrictions to this effect.

On majority rule, they asked whether severance applications ought to continue to be made where instruments seek to instruct multiple (original or replacement) attorneys to act on a majority basis; and whether “should” or similar words constitute a binding instruction or a non-binding preference on the part of the donor.

On replacement attorneys, they asked Whether it is lawful for the donor to replace a replacement attorney; and if not, whether a replacement attorney can be reappointed to act solely.

Offering guidance on these issues, Mr Justice Hayden held primary power cannot be given to one donee ahead of others when appointed on a joint and several basis, and that if a donor appoints more than one attorney on such a basis, equality prevails.

Hayden J also held that where there is an appointment of joint and several attorneys, the statute does not provide for instructions for attorneys to deal separately with defined areas of the donor’s affairs.

Describing the divergence between the language of the statute and the forms as “dangerous”, Hayden J said:

“The donor who constructs their instructions around the language of the forms, rather than the language of the statute, risks invalidating the LPA altogether.

The words of the form may become a siren voice dragging the donor’s preferences onto rocks which prevent the instrument from operating as a valid, lasting power of attorney.

[…] The PG has no discretion in such an event, the LPA may not be registered. The consequence of this will be further delay, likely distress, and uncertainty, in a system which, for the reasons I have set out above, is already under very significant strain.”

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