Re Boff and Re JK

Senior Judge Lush clarified the position about successional replacement attorneys in Re Boff, highlighting some of the pitfalls that donors should consider.

Dr Boff had been appointed as an attorney for her mother and fully understood the practical problems encountered when more than one attorney was involved at any one time. She wanted to appoint her husband as her sole attorney in the first instance then one son, a second son and a niece as respective replacement attorneys. She wanted to avoid multiple people being involved in her financial affairs appreciating that it can cause delay, disagreement, confusion and duplication of effort.

The Office of the Public Guardian rejected the lasting power of attorney at registration on the basis that a replacement attorney can only replace an appointed attorney and not another replacement. They applied to the Court of Protection to have the replacement attorneys' appointment severed. Dr Boff opposed the application and a full hearing occurred.

After looking at the Law Commission reports of 1983 and 1995, the LPA form itself and the OPG guidance, Lush SJ said: "I find that a replacement attorney can only replace an original attorney and cannot replace a replacement attorney."

The OPG then proposed that she appoint replacement attorneys jointly and severally and leave an expression of wish that they act in succession in a particular order. But this would make Dr Boff reliant on the replacement attorneys honouring her wishes as there would be nothing to stop any one of them acting if the appointed attorney could not do so for some reason.

Lush SJ solved the matter by suggesting that Dr Boff make two LPAs. The first would appoint her husband as attorney and her first son as a replacement; the second LPA would appoint her second son as attorney and her niece as a replacement, which would only come into effect if the first LPA was inoperable. This would, of course, be a more expensive option as a professional would probably need to be instructed to draw up the LPAs.

There are several problems with appointing replacement attorneys that practitioners should tell clients when they are considering this option. Lush SJ summarised them as:

• When an LPA is registered, the named person to be notified is currently only given the details of the appointed attorney(s) and not the replacement attorney(s). As this requirement is to safeguard the donor it may be something that needs to be reviewed.

• During registration, there is no formal way for anyone to object to appointing a replacement attorney and the same applies if the appointment occurs under the Mental Capacity Act 2005 (i.e. the original attorney disclaims, dies, becomes bankrupt, lacks capacity or dissolves/annuls their marriage/civil partnership with the donor). Clients should be warned and told to choose their replacement attorneys very carefully.

• Great care needs to be taken in the advice given to the donor who wants to appoint attorneys jointly and a replacement attorney. If one attorney disclaims, dies, becomes bankrupt, etc, the appointment of both attorneys comes to an end and the replacement attorney steps up. This is unlikely to be what the donor intends.

It is possible to appoint a succession of replacement attorneys by using more than one LPA and a precisely drafted condition clause. The appointment of replacement attorneys is most effective when there is one original attorney or multiple attorneys appointed jointly and severally. Careful advice needs to be given to any client considering the use of replacement attorneys.

See Re Boff CoP Case 12338771

 

Re JK

In the recently publicised 2012 case of Re JK,concerning a patient's residence, District Judge Ralton commented on the appropriateness of appointing a personal welfare deputy.

A relative of JK applied to the court to be appointed as a deputy for personal welfare, the main decision being where JK should live. The deputyship application was not pursued but Ralton DJ reviewed the whole issue of such an appointment.

In the Mental Capacity Act code of practice, personal welfare deputies are generally only seen as needed "in the most difficult cases where important and necessary actions cannot be carried out without the court's authority; or there is no other way of settling the matter in the best interests of the person who lacks capacity to make particular welfare decisions".

Ralton SJ said: "The ethos of the Mental Capacity Act 2005 as a whole in alignment with article 8 of the European Convention is for the state to intervene as little as possible."

He then referred to section 16(4) of the Act, which states that it is preferable for the court to make decisions about personal welfare and any powers given to a personal welfare deputy should be "as limited in scope and duration as is reasonably practicable in the circumstances".

First, the judge said, is establishing whether the person lacks capacity to make decisions about their personal welfare and if so whether a deputy is required. He referred to the Honourable Mr Justice Baker's decision in G and E v Manchester City Council and F [2010] EWHC 2512, who commented that in most welfare cases most decisions can be made on an informal basis. Family, friends and professionals should act together in the best interests of the person concerned.

Mr Justice Baker said: "It is emphatically not part of the scheme underpinning the Act that there should be one individual who, as a matter of course, is given a special legal status to make decisions about incapacitated persons."

Ralton DJ pointed out that there is more need to appoint a deputy for property and financial affairs because someone requires the legal standing to be able to manage assets, collect income and settle liabilities. The same cannot be said for personal welfare matters.

He stated: "I think it would be very rare for the court to consider it right to delegate its issue-resolving function to a deputy on any significant issue of principle such as residence, type of care, treatment and such like. The role of resolving such issues must remain with the court of justice."

He went on to say that appointing deputies for personal welfare decisions does not sit well with article 8 of the European Convention of Human Rights.

It is unlikely that the number of successful deputyship applications for personal welfare will increase in the future. The court prefers those closely involved in the welfare of a person who lacks capacity, to work together to make decisions in their best interests. Depending on the facts, it is unlikely that the court will grant power to an individual to make all welfare decisions for someone who lacks capacity.

See Re JK CoP case 1185523T

Lynsey Colman is an associate at Barlow Robbins

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