JG (Case No 12911940) and Others
| Jurisdiction | England & Wales |
| Judge | DJ Eldergill |
| Judgment Date | 19 June 2017 |
| Neutral Citation | [2017] EWCOP 10 |
| Docket Number | Case Nos: 12911669 and Others |
| Court | Court of Protection |
| Date | 19 June 2017 |
[2017] EWCOP 10
IN THE COURT OF PROTECTION
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
First Avenue House
High Holborn, London, WC1A 9JA
District Judge Eldergill
Case Nos: 12911669 and Others
The Public Guardian's Severance Applications
In the Matter of:
The judge has given leave for this judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the donor and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court. The names of the parties have been anonymised.
applications by the Public Guardian for the severance of clauses in instruments intended to have effect as Lasting Powers of Attorney — When severance is and is not necessary — Construction of section 12 (gifts) in relation to providing for the needs of others from the donor's estate
§1 — INTRODUCTION
This case involves 17 electronic applications made by the Public Guardian for Lasting Powers of Attorney to be severed.
§2 — STRUCTURE OF THE JUDGMENT
This decision is structured under the following headings:
§3 — PARTIES AND INTERESTED PERSONS
| §1 — | Introduction | Page 2 |
| §2 — | Structure of the Judgment | Page 2 |
| §3 — | Parties and Interested Persons | Page 2 |
| §4 — | Procedure and Hearings | Page 3 |
| §5 — | Legal Framework | Page 3 |
| §6 — | The Individual Cases | Page 12 |
| §7 — | Concluding Remarks | Page 40 |
In order to keep legal costs proportionate, only the Public Guardian was invited to attend a 90-minute preliminary hearing on 15 September 2016. The purpose of that hearing was to understand better the Public Guardian's reasons for referring each case to the court and his view concerning the underlying statutory provisions before giving directions and joining other persons as parties.
The persons affected by the applications were then notified of a final two-hour hearing on 18 April 2017 so that they could attend and/or be legally represented if they wished.
The final hearing was attended by the Public Guardian in person who was represented by Mr Sunil Teeluck (in-house counsel) and assisted by Mr Iain Dougall. I would like to thank all of them for their very helpful written and oral representations.
§4 — PROCEDURE AND HEARINGS
On 5 December 2016 I sent my written preliminary view on the applications to the Public Guardian and asked him to respond.
In response the Public Guardian provided me with a detailed written reply ('Reply') followed by a position statement ('Position Statement') for the hearing on 18 April 2017.
§5 — LEGAL FRAMEWORK
The legal framework is summarised in this section of the judgment.
A power of attorney is a formal arrangement whereby one person (the donor) gives another person (the attorney or donee) authority to act on the former's behalf and in their name.
The law relating to powers of attorney forms part of the general law of agency and many of the general principles lie in the common law. One fundamental principle is that an act done by a person's agent is in general to be treated as one done by the person themselves.
The extent of an attorney's authority turns primarily on the wording of the power itself. The fact that a Lasting Power of Attorney has to be in a prescribed form does not alter this fact.
In principle the authority given to the attorney and the measure of control which s/he may exercise over the donor's affairs is a matter to be decided on by the donor in consultation with the attorney. The donor can limit the authority by adding restrictions and conditions as s/he wishes.
An attorney's primary duty is to act only within the scope of the actual authority conferred by the power and, as between donor and attorney, s/he can only bind the donor to a transaction with a third party if it is within the scope of the authority. If the attorney fails in this duty, and the donor thereby suffers loss, the attorney will usually be liable to compensate the donor.
The donor may give an attorney extremely wide powers. Nevertheless there are limitations to the attorney's authority under even a general power. An attorney must act in good faith and the effect of the fiduciary relationship between principal and agent is that the attorney must not use their power otherwise than for the benefit of the donor without the latter's specific authority.
The attorney also owes their donor a duty of care when carrying out their functions. An attorney who is not being paid must use such care and skill as s/he would in the management of their own affairs.
An attorney who breaches any of their duties as attorney is personally liable to the donor for any loss thereby sustained by the estate.
Section 9 of the Mental Capacity Act 2005
Section 9 of the 2005 Act provides as follows:
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.
(4) The authority conferred by a lasting power of attorney is subject to—
(a) the provisions of this Act and, in particular, sections 1 (the principles) and 4 (best interests), and
(b) any conditions or restrictions specified in the instrument
In this context 'an instrument' is a document or form that purports to create a lasting power of attorney and, by section 9(3), an instrument which does not comply with sections 9 and 10 and Schedule 1 'confers no authority'.
Paragraph 1(1) of Schedule 1 to the 2005 Act then provides that an instrument 'is not made in accordance with Schedule 1 'unless – (a) it is in the prescribed form'. By paragraph 1(3), the prescribed form is that prescribed by regulations.
The relevant regulations are the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 (SI 2007 No. 1253) — referred to below as 'the 2007 Regulations' — regulation 5 of which provides that 'The forms set out in Parts 1 [Property and Financial Affairs] and 2 [Health and Welfare] of Schedule 1 to these regulations are the forms which, in the circumstances to which they apply, are to be used for instruments intended to create a lasting power of attorney'.
The 2007 Regulations were amended most recently by The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment) Regulations 2015 (SI 2015 No. 899). The latter, referred to below as 'The Amendment Regulations', came into force on 1 July 2015 and introduced a number of changes. These included replacing the LPA forms in Parts 1 and 2 of Schedule 1 with new forms to be used when creating property and affairs and health and welfare LPAs.
Paragraph 3 of Schedule 1 to the 2005 Act deals with irregularities in the prescribed form of an LPA:
Failure to comply with prescribed form
3(1) If an instrument differs in an immaterial respect in form or mode of expression from the prescribed form, it is to be treated by the Public Guardian as sufficient in point of form and expression.
(2) The court may declare that an instrument which is not in the prescribed form is to be treated as if it were, if it is satisfied that the persons executing the instrument intended it to create a lasting power of attorney.
Paragraph 3 is concerned therefore with 'the prescribed form' of the 'instrument' and with failure to adhere to 'the prescribed form' rather than with conditions, restrictions and other terms inserted in an 'instrument in the prescribed form' by a donor.
The historical origin and purpose of paragraph 3(1) can be traced back to The Law Commission Report, The Incapacitated Principal (The Law Commission, Cmnd. 8977, July 1983).
The Law Commission recommended that immaterial differences in the form or content of an Enduring Power of Attorney should not affect its validity. However, the Commission did not 'envisage the Court being empowered to validate instruments that were invalid as EPAs' (see para. 4.10, fn. 116). In consequence, section 2(6) of the resulting Enduring Powers of Attorney Act 1985 included a 'different in immaterial respects' provision identical to what is now paragraph 3(1) but not an equivalent to what is now paragraph 3(2). As the years went by this strict approach to validity came to be viewed by many as unsatisfactory and unhelpful, and when the Law Commission returned to the subject in 1995 it recommended a more flexible approach.
The historical origin and...
To continue reading
Request your trial
-
Various Lasting Powers of Attorney
...reconsideration in The Public Guardian v. DA & Ors [2018] EWCOP 26 at paragraph 9. 18 See The Public Guardian's Severance Applications [2017] EWCOP 10 at paragraph 19 Ibid at paragraph 141 20 At paragraph 152(f) 21 For example, in Re Cameron (Deceased) [1999] Ch 386 Lindsay J concluded tha......
-
Polyphonic Legality: Power of Attorney Through Dialogic Interaction
...Powers of Attorney and Public Guardian Regulations 2007 SI 2007/1253 paragraph 8. 7. The Public Guardian’s Severance Applications [2017] EWCOP 10.8. Ibid., at Antaki C (2011) Six kinds of applied conversation analysis. In: Antaki C (ed) Applied Conversa- tion Analysis: Intervention and Chan......