Lasting Powers of Attorneys (‘LPAs’) are legal documents which allow a donor to appoint one or more individuals to act as their attorneys, to help make decisions or make decisions on their behalf. Attorneys may be appointed jointly, meaning they must exercise their powers together, or jointly and severally, meaning they can make decisions both together or alone.
This article explores the rationale for LPAs and the case of Re Public Guardians Severance Applications [2023] EWCOP 24, which has provided useful clarity on the scope and ambit of powers and restrictions which can be given under an LPA.
The primary principal behind LPAs is recognised as promoting autonomy. This is the idea of self-governance, that an individual’s thoughts, wishes and feelings over their estate remain valid even when they cannot exercise their wishes themselves, either through loss of capacity or loss of physical ability. By appointing someone to manage their estate in their best interests, the donor retains a level of control and autonomy over decision making on their behalf.
LPAs are a useful estate planning tool, and this is best reflected by their growing popularity. Every day, the Office of the Public Guardian (‘OPG’) receives 5,000-6,000 applications to register an LPA in England and Wales. The OPG is the government body responsible for registering LPAs and monitoring their use.
Although the donor’s autonomy is a cornerstone of LPAs, restrictions in the Mental Capacity Act 2005 and the Court of Protection limit what an attorney can do. If an LPA contains a provision which is potentially invalid, the OPG can apply to the Court of Protection to determine whether they can register this LPA. The LPA may be rejected by the Court of Protection, or the Court may remove (sever) an offending provision from the LPA altogether.
In Re Public Guardians Severance Applications 2023 EWCOP 24, the OPG brought an application for the Court of Protection’s guidance on nine consolidated cases. This case asked the Court of Protection to determine six common queries relating to what a donor can do and the Judge concluded as follows:
Justice Hayden concluded that attorneys appointed to act jointly and severally must do so equally. It is not possible to appoint one attorney as the primary attorney, and any clause attempting to do so will be severed from the LPA.
Likewise, it is not possible to limit attorneys appointed jointly and severally to a specific remit of responsibility. Requiring a jointly and severally appointed attorney to make decisions only relating to, for example, ‘my business affairs’ or ‘my personal affairs’ is not what the statute intended. That said, Justice Hayden recognised that there is nothing to prevent the donor from creating two LPAs, each appointing an attorney to deal with certain powers.
Justice Hayden also rejected the idea that attorneys can be authorised to act on a ‘majority’ basis. Although he recognised the flexibility this would afford, he concluded that the statute does not permit this.
A donor is entitled to choose an attorney to replace a replacement attorney. In fact, it would be contrary to the rationale of promoting self-governance if the donor was not able to make an entirely free choice to choose a replacement, causing the LPA to lapse.
When it comes to drafting LPAs, there are some pitfalls which may result in an application being rejected or a key clause being severed if not done correctly. Justice Hayden made a clear call for the LPA forms to be updated to better reflect the statute within the hearing, and hopefully the OPG will take the opportunity to do so.
In any event, this guidance from Justice Hayden is a welcomed update which clarifies some key and common queries that arise when creating an LPA.
If you have any further questions or would like assistance in drafting LPAs, acting in your role as attorney, or more general mental capacity queries, please contact Michelmores.
