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The importance of Capacity when executing a Lasting Power of Attorney (LPA)

27 June 2022
Worried middle aged couple sitting in a sofa with a financial advisor

The recent judgment of Mr Justice Poole in The Public Guardian v RI & Ors [2022] EWCOP 22 is an insightful and helpful case which considered whether the donor of an LPA for Property & Financial Affairs had the requisite level of capacity to execute the document in 2009. 

The lack of judicial authority in this area prompted Mr Justice Poole to publish this judgment. In particular, the judgment highlighted the importance of the role of the certificate provider. It also highlighted the skills, experience and precaution, that must be exercised in addition to standard practices when dealing with donors who have disabilities. 

Background

The Donor, RD, was born in 1961 and suffers with a learning disability. RD has also been diagnosed with chronic Schizophrenia and continues to receive treatment. 

RD purportedly executed an LPA on 17 December 2009 for Property and Financial Affairs. The LPA appointed his brothers, RI and RO, along with his mother, V, to be his attorneys. The certificate provider was signed by a legal executive, JH, confirming that the LPA complied with all the requisite formalities.

At the time of the execution of the LPA, RD was living with his mother, V. It is understood that whilst living with V, RD would regularly visit the local shops by himself, utilising the services of local transport, to sometimes purchase ingredients which he would use to prepare meals. RD also exercised independence whilst dressing, preparing and eating food, and in relation to his own personal hygiene.

Sadly, in or around 2014, V became unwell and as a result passed away in 2015. Following her death, RD moved into a care home where he continues to reside. Unfortunately, RD’s wellbeing has deteriorated since V’s death, and he has started displaying behavioural problems. RD is currently subject to a deprivation of liberty restriction. This means he is not permitted to leave his care home without supervision.

In 2019, the care home manager raised concerns about the management of RD’s finances to the Office of Public Guardian (OPG). The concerns raised were in relation to:

  • The surviving attorneys’ refusal to provide RD with sufficient funds so that he could enjoy a holiday in Blackpool;
  • The unauthorised delegation of attorney duties to RI’s wife, D; and 
  • The outstanding question as to whether RD had received a one-third share of V’s estate in accordance with her Last Will & Testament.

Investigation

The concerns prompted an investigation by the OPG and on 11 April 2019, a Court General Visitor, Mr Pratt, visited RD to produce a report. Mr Pratt expressed in his report that RD had a lifelong learning disability and that in his view, RD may not have had requisite level of capacity to execute the LPA in 2009. 

On 9 July 2019, a Consultant in Old Age Psychiatry, Dr Ntanda, assessed RD and concluded that RD did not have capacity to manage his finances or to revoke the LPA. Dr Ntanda also expressed his agreement with Mr Pratt that it was “most likely” that RD did not have capacity to execute the LPA in 2009. 

As a result, the OPG applied to the Court of Protection to ask the Court to consider that RD did not had capacity to execute the LPA in 2009 under Section 9(2)(c) of the Mental Capacity Act 2005. 

Separately, on conclusion of their investigation, the OPG did not raise any substantial concerns in respect of the other issues raised by the care home manager. There was no suggestion that RD had been a victim of fraud or misconduct by his attorneys or that RD had been unduly influenced to make the LPA. The Court also confirmed its satisfaction that all parties had always acted in RD’s best interests

Key issues 

The Court considered the relevant statutory provisions and was tasked with exercising its powers under Section 22(2)(a) of the Mental Capacity Act 2005 in determining the question of whether the requirement for the creation of the LPA was met.  

The Court stated that if it were to make a finding that the requirements were not met, the LPA would be found to be invalid. This meant that no revocation of the LPA would be required as it was never valid. Instead, the OPG would be directed to cancel the registration of the LPA. 

In order to consider the question of past capacity, the Court highlighted that it would look at the principles under Sections 1 – 3 of the Mental Capacity Act 2005 and apply these to the specific decision at the specific time. The Court would also have regard to all the evidence relevant to capacity at the material time. 

Execution requirements and relevant evidence 

Mr Justice Poole considered that in order for the LPA to be held valid, RD would have needed to have understood the following:

  1. The effect of the LPA.
  2. Who the attorneys are.
  3. The scope of the attorneys' powers and that the MCA 2005 restricts the exercise of their powers.
  4. When the attorneys can exercise those powers, including the need for the LPA to be executed before it is effective.
  5. The scope of the assets the attorneys can deal with under the LPA.
  6. The power of the donor to revoke the LPA when he has capacity to do so; and 
  7. The pros and cons of executing the particular LPA and of not doing so.

The Court also stated that where there is a dispute about past capacity, it would be helpful to have evidence as to:

  • The certificate provider's experience - in particular in making a sufficient assessment of the capacity of a prospective donor who is known to have a learning disability or other impairment which might affect their capacity to execute an LPA – their usual practice or their specific recollections of the making of the LPA;
  • Evidence from carers and family members relevant to P's capacity to execute an LPA at the relevant time and to any changes in P's condition, relevant to capacity, over time.
  • Medical evidence, capacity assessments, assessments for benefits, records from carers or activity centres, or other professional evidence roughly contemporaneous with the relevant date when the LPA was executed.
  • An assessment by a suitably qualified and experienced person of P's current capacity and reasoned opinion as to their capacity to execute the LPA at the relevant time, such opinion being informed by review of relevant medical records, contemporaneous assessments, and the evidence from carers and family members.

Court’s decision

Mr Justice Poole concluded that there was evidence for and against the case that RD did not have capacity to execute the LPA in 2009. However, it was RD’s learning disability, which had been the predominant cause of his difficulties with decision–making. 

The Court preferred the evidence of Dr Ntanda that in 2009, RD, would have lacked capacity to execute the LPA as he would not have been able to understand, retain, weigh and use the relevant information to make an informed decision. As a result, the Court held that the LPA was invalid and directed the OPG to cancel the registration.

Comment

This judgment is extremely useful to those who are often instructed to assist individuals who are particularly vulnerable due to mental illness or disability, for example. It also serves as a useful example as to how the Court will consider capacity when considering this retrospectively.

The Court’s emphasis in relation to reliable contemporaneous evidence also serves as a key reminder to practitioners of the importance of ensuring they are making and retaining appropriate documentation on their file. The judgment also signifies the importance of obtaining independent evidence, in the form of a capacity assessment, as this may later be considered and relied upon if the Court is asked to decide whether a document, such as an LPA or a Will, is valid. 

If you require assistance with the preparation of an LPA or alternatively would like advice in respect of concerns you have about the validity of a loved ones LPA, please do not hesitate to contact us.

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