LPAs: who has the power?

Various cases of note were heard in the Court of Protection in 2013. The Senior Judge made decisions about what cannot be provided for in a power of attorney and severed many provisions that contradict statutory ones.

In Re Spaas (April), the donor made a health and welfare lasting power of attorney (LPA) including the condition that if she became completely mentally or physically incapable she wished “steps to be taken” to end her life as quickly and painlessly as possible. The words in quotation marks were severed to avoid any doubt that assisted suicide, which is unlawful, was being suggested.

The health and welfare LPA in Re Baxter (April) included a provision that it was to be used if the donor is “becoming mentally incapable” or has “become physically handicapped to such a degree that I cannot look after my affairs without significant inconvenience, discomfort or difficulty”.

This contravenes s11(7)(a) of the Mental Capacity Act 2005 (MCA), which states that an attorney can only make health and welfare decisions on behalf of the donor where they lack or the attorney reasonably believes they lack mental capacity, not physical capacity.

The donor of an LPA cannot leave it to the attorneys or replacement attorneys to decide which replacement is to act. In Re Griggs (June) the provision “my remaining attorney is to choose which replacement attorney is to act as my other attorney” was severed for this reason.

In Re Black (January), a restriction in a property and financial affairs LPA that appointed two attorneys jointly and severally, that said one attorney was to deal with the continuing management of a solicitors practice only and the other attorney was to deal with personal and business financial matters, was severed because it was incompatible with a joint and several appointment.

Similarly, a restriction in Re Bishop (February) on how joint and several attorneys were to act was severed because it was incompatible with the appointment. The restriction said: “I direct that my attorneys shall endeavour to act jointly on decisions wherever possible.

They must only act severally when all practicable steps to act jointly have been made without success. If an attorney must act severally then that attorney must consult the other before making the decision and keep the other informed of any decision made.”

The Senior Judge reaffirmed that a donor cannot give attorneys power to undertake tax planning because it contravenes s12 of the MCA. In Re Barac (February), the provision “after having taken full regard for my financial welfare and security I want my attorneys to take sensible steps to protect my estate from the effects of taxation (e.g. inheritance tax) and be able to create trusts where beneficial” was severed. Attorneys would have to make an application to the Court of Protection to undertake such tax planning.

A provision for “no political donations to be made other than to the Conservative party” in an LPA for property and financial affairs was found to contravene s12 of the MCA in the case of Re Rider (February). Although s12(2)(b) allows gifts to charities, donations to political parties do not fall within its remit.

In Re Martin (February), the Senior Judge found that the MCA didn’t permit a replacement attorney to be replaced and it isn’t possible to direct that an attorney or a replacement attorney acts as an assistant to another attorney or replacement attorney.

In Re Goodwin (June), the Senior Judge severed a provision that allowed an attorney to appoint a substitute or successor attorney, which isn’t permissible under s10 of the MCA. The provision stated: “She [the attorney] should also make every effort to find one or two replacement attorneys to take over her responsibilities in the event of her own death, or if she no longer has the mental capacity to carry on, so that there is a continuing ‘lasting power of attorney’ in place during the donor’s lifetime.”

All these examples highlight that practitioners must have regard to the provisions of the MCA when drafting any restrictions and conditions in an LPA. This means avoiding any delay or additional expense that will inevitably arise when an application to the court is made to sever those that are incompatible with the statute.

Lynsey Colman is an associate at Barlow Robbins

She writes regular Court of Protection case updates for Private Client Adviser