The form for creating Lasting Power of Attorney runs to many pages. The government justified the considerable extra expense in registering LPAs on the grounds that they were easier to complete without a solicitor. Unfortunately, as the number of cases in the Court of Protection in relation to defective LPAs are showing, it is not proving as easy as the government had hoped. Indeed, the many cases in the Court of Protection are showing that even solicitors are getting things wrong. The problem is that practice in the Court of Protection is a highly specialist area. Being a specialist in Wills or Trusts may not be enough.
The new Court of Protection is still finding its feet. Cases determining how LPAs operate are literally flooding out of the Court and unless a solicitor specialises in this particular area, it is impossible to keep up. We set out below a number of the simple problems that have arisen which have created expense, anxiety and much waste of time to resolve.
Section 12 of the Mental Capacity Act 2005 prevents the LPA from giving power to make gifts other than for customary occasions eg birthdays, marriages etc. yet in Re Jackson (2011) COP 17/08/11 an attempt was made to give attorneys the power to sell stocks and shares so as to pay into an account where the donor’s wife could have full access. It was struck out as contravening section 12. Similarly, in Re Fisher (2011) COP 28/07/11 a clause directing the sum of £4,000 per month to be paid into the bank account of the donor’s wife failed. Another example was Re Walker (2011) COP 20/07/11 where a clause in the LPA to provide financial help to the donor’s son as and when required, was struck out. Section 12 is a basic requirement in the Mental Capacity Act and it shows the importance of knowing what the Act says if an LPA is to be done without legal advice and, if a lawyer is to be involved, making sure you choose someone who has read the Act and keeps abreast of developments.
Another part of the MCA which causes constant problems is section 10 which relates to the appointment of an attorney. The first simple rule is that any attorney has to be 18 at the date of executing the LPA but in Re Brindley (2011) COP 11/05/11 a clause appointed someone as an attorney when he attained the age of 18 in the future. Obviously the provision failed.
Another source of problems is in the appointment of more than one attorney to act together. The law allows them to be appointed ‘’jointly’’ or “jointly and severally”. There is a very significant legal distinction between the two forms of appointment. It is the “joint” appointment which needs careful scrutiny because it means all attorneys so appointed must act as one. It is easy to see what difficulties will arise if they can’t agree. In a joint and several appointment they can act either together or individually.
It is possible to appoint attorneys to act “jointly” for some situations and “jointly and severally” for others. However, great precision is needed in the drafting as the case of Re Freeman (2011) COP 17/08/11 shows. Two attorneys were appointed with “major capital expenses” to be done jointly and “day to day expenses” to be done by either of them. The Court held that the word “major” was too uncertain and that, in any event, the precise powers to be exercised by way of either capital or day to day expenses should have been specified clearly. The Court resolved the matter by re-ordering the LPA so that the attorneys had to make joint decisions together for capital expenses but could take individual decisions “jointly and severally” for everything else.
Finally, there are two interesting decisions as they relate to the importance of filling the forms in correctly, the interaction between a Will and an LPA and the law of assisted suicide.
In Re Hodgkiss (2011) COP 25/08/11 a health and welfare LPA was made by ticking option B which indicates that the attorneys have no authority to give or refuse life sustaining treatment. Unfortunately, the LPA went on to say that his attorneys must consent to any life sustaining treatment if he was in a persistent vegetative state. If this was the donor’s intention, he should have ticked option A. The provision was struck out so that the donor would have to complete a new form and make a fresh application at more expense, time and trouble.
In Re Wheeler (2011) COP 25/07/11 a clause saying that the attorneys could act on the contents of the donor’s Will was struck out. An LPA can only operate during the donor’s lifetime. Not only was the clause considered to be unclear (where was the will, would it apply to codicils, what if it was revoked and replaced by another) it was also contrary to public policy as it was not the function of an attorney to act as an executor of a Will which could not come into force until the donor died.
Finally, there is the case of Re Gardner (2011) COP 6/07/11 which provided for the attorneys to assist the donor to travel to a country where it would be legal to take his own life. This was struck out as being contrary to the law relating to murder and manslaughter and purported to authorise the attorneys to commit a criminal offence.
These cases and the law stated in them are correct as at 11 October 2011.