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People often consider executing a Lasting Power of Attorney (“LPA”) when they reach their later years, and their chances of suffering from a condition which may affect their cognitive ability increases. It is necessary for a donor (the person granting the LPA) to have capacity at the time it is signed pursuant to section 9(2)(c) of the Mental Capacity Act 2005 (“the 2005 Act”). If someone’s capacity has started to fluctuate, this can result in uncertainly as to whether the LPA was validly executed.
An independent person must act as certificate provider and confirm that the donor understood the scope and purpose of the LPA, and wasn’t subject to undue pressure at the time it was signed. However, if there is evidence which indicates that the donor did not have capacity, an application can still be made to the Court of Protection to request that it determine the issue under S22(2)(a) of the 2005 Act. The Court has the power to cancel the registration of the LPA if it is satisfied that the donor did not have capacity.
Test for capacity to execute an LPA
In the case of The Public Guardian v RI & Ors [2022] EWCOP 22, the court set out relevant factors to consider when determining whether someone had capacity to execute an LPA. Under section 3 of the 2005 Act, a person lacks capacity to make a decision for themselves if they were unable to understand, retain or weigh the information relevant to the decision. The court set out the information which it considered to be relevant to the decision, which includes:
- The effect of the LPA;
- Who the attorneys are;
- The scope of the attorneys' powers and that the 2005 Act restricted the exercise of their powers;
- When the attorneys could exercise those powers, including the need for the LPA to be executed before it was effective;
- The scope of the assets that the attorneys could deal with under the LPA;
- That they have the power to revoke the LPA while they have capacity to do so;
- The pros and cons of executing the LPA.
The court also set out the evidence it would ideally like to have in order to determine whether the donor had capacity, which includes:
- Details of the certificate provider's experience and recollections of the making of the LPA;
- Evidence from carers and family regarding the donor’s capacity at the relevant time and subsequently;
- Medical evidence, capacity assessments, or other evidence from the time when the LPA was executed; and
- An assessment of the donor’s current capacity and opinion on their capacity to execute the LPA at the relevant time.
Can the Donor revoke the LPA?
Challenges to the validity of an LPA usually arise when a family member, or the donor themselves, are concerned about the conduct of the attorneys. It is important to consider whether the donor has capacity to revoke the LPA should they wish to, before making any application to court. The test for capacity is fact and issue specific, so the relevant information that the donor needs to understand, weigh, and retain when revoking an LPA is different to when executing one. In the case of SAD and ACD v SED [2017] EWCOP 3, the court considered that the relevant information when revoking an LPA is:
- who the attorneys are;
- what authority they have;
- why it is necessary or expedient to revoke the power;
- the foreseeable consequences of revoking the power; and
- whilst guarding against setting the test too high, the judge suggested that it would also be appropriate to consider whether the donor is able to weigh and take into consideration her reasons for the original decision to appoint the attorneys.
It should be kept in mind that, as the tests for capacity are different, someone may have capacity to revoke an LPA but not have capacity to make a new one. If the donor is unable to make a new LPA, either after a revocation, or following cancellation of an LPA by the court, then it may be necessary for a deputy to be appointed to manage the incapacitated person’s affairs.
FURTHER INFORMATION
If you have any questions or concerns about the content of this blog, please contact Anna Metadjer or any member of the Dispute Resolution team.
ABOUT THE AUTHOR
Anna Metadjer has extensive litigation experience, acting for both domestic and international clients on complex, multi-jurisdictional, trust and estate disputes. Anna acts for clients bringing and defending claims relating to estates, including disputes regarding the validity of wills, estate administration, and claims under the Inheritance (Provision for Family and Dependants) Act 1975. She regularly advises beneficiaries and trustees regarding allegations of breach of trust, disclosure requests, and the removal of trustees. Anna is also experienced in dealing with Court of Protection disputes relating to the appointment or conduct of attorneys and deputies, the recovery of assets, and reporting restrictions.
We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
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