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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> The Public Guardian v RI & Ors [2022] EWCOP 22 (07 June 2022) URL: https://www.bailii.org/ew/cases/EWCOP/2022/22.html Cite as: [2022] WTLR 1133, [2022] 2 P & CR DG25, [2022] COPLR 420, [2022] EWCOP 22 |
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2022] EWCOP 22 | ||
Sitting in Newcastle-upon-Tyne
2022 |
B e f o r e :
____________________
| The Public Guardian |
Applicant |
|
| - and - |
||
| (1) RI (2) D (3) RS (4) RO |
Respondents |
____________________
The Respondents in person
Hearing date: 25 May
2022
____________________
Crown Copyright ©
Mr Justice Poole :
22(2)(a)
MCA 2005. If the Court so found, the Public Guardian sought a direction that it must cancel the registration of the LPA - Schedule 1, paragraph 18 of the MCA 2005 - and an order appointing a deputy for RD to manage his property and affairs.
Section22
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Powers of court in relation to validity of lasting powers of attorney
(1)This section and section 23 apply if —
(a) a person ("P") has executed or purported to execute an instrument with a view to creating a lasting power of attorney, or
(b) an instrument has been registered as a lasting power of attorney conferred by P.
(2)The court may determine any question relating to—
(a) whether one or more of the requirements for the creation of a lasting power of attorney have been met;
(b) whether the power has been revoked or has otherwise come to an end.
Section 9
Lasting powers of attorney
(1) A lasting power of attorney is a power of attorney under which the donor ("P") confers on the donee (or donees) authority to make decisions about all or any of the following—
(a) P's personal welfare or specified matters concerning P's personal welfare, and
(b) P's property and affairs or specified matters concerning P's property and affairs,
and which includes authority to make such decisions in circumstances where P no longer has capacity.
(2)A lasting power of attorney is not created unless—
(a) section 10 is complied with,
(b) an instrument conferring authority of the kind mentioned in subsection (1) is made and registered in accordance with Schedule 1, and
(c) at the time when P executes the instrument, P has reached 18 and has capacity to execute it.
(3) An instrument which—
(a) purports to create a lasting power of attorney, but
(b) does not comply with this section, section 10 or Schedule 1,
confers no authority.
Schedule 1, Paragraph 18
The court must direct the Public Guardian to cancel the registration of an instrument as a lasting power of attorney if it—
(a) determines under section22(2)(a)
that a requirement for creating the power was not met, …
Section 14
Protection of donee and others if no power created or power revoked
(1) Subsections (2) and (3) apply if—
(a) an instrument has been registered under Schedule 1 as a lasting power of attorney, but
(b) a lasting power of attorney was not created,
whether or not the registration has been cancelled at the time of the act or transaction in question.
(2) A donee who acts in purported exercise of the power does not incur any liability (to P or any other person) because of the non-existence of the power unless at the time of acting he—
(a) knows that a lasting power of attorney was not created, or
(b) is aware of circumstances which, if a lasting power of attorney had been created, would have terminated his authority to act as a donee.
(3) Any transaction between the donee and another person is, in favour of that person, as valid as if the power had been in existence, unless at the time of the transaction that person has knowledge of a matter referred to in subsection (2).
In the present case there is no suggestion that RI, RO or V knew that RD lacked capacity to execute the LPA. I accept that at all times they followed advice and relied upon the Legal Executive, JH. Nor does s.14(2)(b) apply. Therefore, in the event that I find that the LPA was not created, the protection under s.14 MCA 2005 applies to them.
2022
DJ Temple set aside the order of 19 October 2020 as having been erroneous in law and fact. In particular, there had been no declaration as to RD's capacity to execute the LPA and only an interim declaration about RD's capacity to manage his property and financial affairs. Directions were given, including that the hearing of the determination of past capacity should be on submissions only, without evidence. Due to the illness of the District Judge due to hear the case, the final hearing was re-listed before me on 25 May
2022.
22(2)(a)
of the MCA 2005 to determine the question of whether a requirement for the creation of the LPA was met, the relevant requirement in this case being that at the time of execution RD had capacity to execute it. If that requirement was not met, no authority was conferred on the donees and the LPA is and was always invalid. It does not require revocation because it was never valid. Upon any finding that RD lacked capacity to execute the LPA the court should record its determination and must then direct the Public Guardian to cancel the registration of the LPA. I am not persuaded that a declaration as to capacity under s.15 of the MCA 2005 is also required – what is required is a determination of past capacity to execute the LPA.
Section 1
The principles
(1)The following principles apply for the purposes of this Act.
(2)A person must be assumed to have capacity unless it is established that he lacks capacity.
(3)A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
Section 2
People who lack capacity
(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
…
(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.
Section 3
Inability to make decisions
(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable—
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of—
(a )deciding one way or another, or
(b) failing to make the decision.
"Finally, I should say something about what is meant by understanding the nature and effect of the power. What degree of understanding is involved? Plainly one cannot expect that the donor should have been able to pass an examination on the provisions of the 1985 Act. At the other extreme I do not think it would be sufficient if he realised only that it gave cousin William power to look after his property. Counsel as amicus curiae helpfully summarised the matters which the donor should have understood in order that he can be said to have understood the nature and effect of the power: first, if such be the terms of the power, that the attorney will be able to assume complete authority over the donor's affairs; second, if such be the terms of the power, that the attorney will in general be able to do anything with the donor's property which the donor could have done; third, that the authority will continue if the donor should become mentally incapable; fourth, that if he should be or become mentally incapable, the power will be irrevocable without confirmation by the court. I do not wish to prescribe another form of words in competition with the explanatory notes prescribed by the Lord Chancellor, but I accept the summary of counsel as amicus curiae as a statement of the matters which should ordinarily be explained to the donor whatever the precise language which may be used and which the evidence should show he has understood.
At page 362j Mr. Justice Hoffmann said:
I think that my conclusions are in accordance with what appears to be the general policy of the 1985 Act. In practice it is likely that many enduring powers of attorney will be executed when symptoms of mental incapacity have begun to manifest themselves. These symptoms may result in the donor being mentally incapable in the statutory sense that she is unable on a regular basis to manage her property and affairs. But, as in the case of Mrs F, she may execute the power with full understanding and with the intention of taking advantage of the Act to have her affairs managed by an attorney of her choice rather than having them put in the hands of the Court of Protection. I can think of no reason of policy why this intention should be frustrated.
However, in my judgment, the criteria in Re K, Re F are not entirely applicable to LPAs because of some fairly major differences between EPAs and LPAs, and would need to be adapted in several respects. For example:
- the donor would need to understand that the LPA cannot be used until it is registered by the Public Guardian. This is simply not the case with an EPA.
- one would expect to see a change of emphasis between the creation of an LPA for personal welfare and an LPA for property and affairs; and, in particular, the donor would need to understand that the attorney under an LPA for personal welfare can only make decisions that the donor is contemporaneously incapable of making for him- or herself.
- unlike an EPA, the donor can revoke an LPA at any time when he or she has the capacity to do so (section 19(2)), without the court having to confirm the revocation.
- the authority conferred by an LPA, unlike an EPA, is subject to the provisions of the Mental Capacity Act 2005 and, in particular, sections 1 (the principles) and section 4 (best interests) (section 9(4)).
- the statutory definition of capacity in section 3(4) of the Act specifically requires the donor to be aware of the foreseeable consequences of not executing an LPA, whereas in Re K, Re F Mr Justice Hoffmann did not include an understanding of the effect of not making an EPA in his summary of the matters which should ordinarily be explained to the donor.
a. The effect of the LPA.
b. Who the attorneys are.
c. The scope of the attorneys' powers and that the MCA 2005 restricts the exercise of their powers.
d. When the attorneys can exercise those powers, including the need for the LPA to be executed before it is effective.
e. The scope of the assets the attorneys can deal with under the LPA.
f. The power of the donor to revoke the LPA when he has capacity to do so.
g. The pros and cons of executing the particular LPA and of not doing so.
My Mother-in-Law, V, asked me to make an appointment to see a solicitor to arrange a discussion regarding her Will and how best to ensure that RD's financial interests were taken care of, apparently with her health deteriorating she was becoming concerned and had been advised to get professional advice by her brother. I made an appointment to see JH a solicitor at S& J, I believe he was chosen at random on the proximity of their premises. We both attended the initial meeting with JH without RD, where her concerns were addressed, her will was fairly straightforward with a Trust created for RD to be included in the distribution of her assets and an LPA was suggested. We were asked to return the following week with RD in order for the Lasting Powers of Attorney to be created. The following week I picked V up at her home and met RD near the solicitor's office {an indication of his capabilities at that time} I believe he was fully aware of why he was at the solicitors and later that day would announce he had been out to sign a very important paper.
Initially JH engaged in general conversation with him then asked him if he was happy to go to a different room to answer some questions and sign some papers. Neither RD's mother nor I were present at their private meeting.
In her oral evidence J said that the meeting in private between JH and RD had lasted about 30 minutes. She did not witness JH giving any advice or explanation of the LPA to RD. She thought that RD had understood the LPA because he had said over coffee afterwards that he had signed a very important paper and he was aware that RI and RO would be looking after his money. She said that in 2009 RD travelled independently on local buses, went shopping on his own, and was independent within the home he shared with his mother. He would handle "pocket money" given to him rather than managing all his finances himself. He had deteriorated significantly in recent years.
… at the time of the making of the LPA, RD was aware of what was happening, he was sociable, able to engage in conversation and quite independent, he could travel freely on the buses to the local areas and shop for himself and his mother if she needed anything. RD also attended the Multi-Purpose centre where he engaged in numerous activities. In marked contrast to his Mental State now, where he is not allowed out without a carer hence the DOLS due to his behavioural problems in the community, a comparison of RD from then with a 10-year gap does not stand up to scrutiny. In that time, he had a lost his mother, moved out of the family home and had to become used to a different lifestyle, all quite traumatic.
The Care Home Manager showed me documentation within the care plan which stated that RD has been assessed to function at the level of a 4-year old, which is why he requires supervision and care. Despite RD's learning disabilities, I was informed that he is high functioning in terms of meeting his personal care needs; He dresses himself appropriately and eats and drinks independently. RD is fully continent. He occasionally requires some prompting regarding changing his clothes and staff provide support in the preparation of meals and prompting regarding taking his medications but RD is able to make himself sandwiches and cups of tea and coffee without supervision. RD has been assessed and deemed safe to go out into the village unaccompanied most days. However, I was informed that he will compulsively buy sweets and toys so his pocket money is rationed each day. The Care Home Manager stated that RD will spend whatever he has in his pocket and has been caught shoplifting on several occasions.
As already noted, unfortunately RD is not now permitted out unaccompanied due to continuing incidents. At the time of his report, Mr Pratt was relaying what he was told but also giving his impression. The assessment of adult functioning by reference to a child's age may be regarded as rather crude and insensitive, but the information given to Mr Pratt indicates that although RD could function relatively well in respect of activities of daily living, his learning disability was severe. Mr Pratt observed that,
Based upon the Donor's presentation and the fact that I was informed that he appears to have had lifelong learning disabilities, I was surprised to learn that he was deemed to have the relevant mental capacity to make the LPA in the first instance.
I asked [RD] about the LPA and he said "I can remember signing something when my mom was with us. They were doing this will thing and they wondered how long it would be and whatever at the time". I tried to explain what an LPA was he still didn't understand or retain the information I presented to him.
He was not aware that both RO and RI were his attorneys. He stated that RI sorted out his money, and that he had nothing to do with his wife. He wasn't aware that RO was also an attorney.
He didn't understand what authority an LPA had.
Why it is necessary or expedient to revoke the power.
He didn't want the LPA revoked and said that even if he can't go on holiday to Blackpool he wouldn't want anyone else to look into his finances.
The nature of learning disabilities is that you have developmental problems from birth which persist through life. The deficits are static and I would expect similar problems with understanding and memory that were evident then and now. I think on the balance of probability he was advised to sign the LPA form by his mother and family at the time and she would rightly have had influence in convincing him to sign this document, and I am not sure if he understood the implications of the same.
Later he re-addressed the question of whether he believes RD had capacity to execute the LPA in 2009, answering,
No I do not; the nature of learning disabilities is that you have developmental problems from birth which persist through life. The deficits are static and I would expect similar problems with understanding and memory that were evident then and now.
Dr Ntanda also writes in his report that, "I feel it most likely that he did not have capacity at that time."
a. 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;
b. 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.
c. 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.
d. 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.
In the present case Dr Ntanda did not have the advantage of evidence from family members and has not responded to their evidence. There are no contemporaneous records, save for GP records which Dr Ntanda has briefly summarised. Efforts to trace the certificate provider have proved fruitless and there is no evidence from his former firm to assist the court. Nevertheless, the enquiries have to be proportionate, I do not criticise the parties in this case, and the evidence provided is sufficient for the court to make a determination.
22(2)(a) of the MCA 2005 is that one of the requirements for the creation of the LPA has not been met, namely the requirement under s.9(2)(c) of the MCA 2005 that when RD executed the instrument he had capacity to execute it. Hence, under para. 18 of Sch 1 of the MCA 2005 I direct the Public Guardian to cancel the registration of the LPA.