A judgment has been published relating to questions raised by the Public Guardian on Lasting Powers of Attorney.
The judgment highlighted by STEP in the below article (with the full decision available here) looked at some specific points on the wording of the Lasting Power of Attorney (LPA) forms, how this compared with the legislation, and then how in the abstract this related to nine applications for registration made to the Office of the Public Guardian (OPG).
Interesting / useful information from the judgment includes:
- The OPG deal with 5,000 - 6,000 applications a day
- The judge noted the "unsatisfactory tension" between the wording used in the LPA forms with the legislative wording. They went further to say that this can sometimes be "dangerous" in circumstances where a donor assumes the wording of the form means one thing and takes an action on that basis which may actually invalidate their LPA due to the actual statutory wording that sits behind the form.
- If a donor states in their LPA that they want their attorneys to defer to a particular attorney's overriding decision, this does not fit with the statute. The statute is drafted on the basis of attorney equality. Where there is wording of this type, the OPG would likely apply to the Court of Protection to have that wording removed from the LPA so that the default and/or remainder wording could continue in force. The Court agreed with the OPG's approach.
- If a donor expresses a wish in a single LPA that they would like attorney A to deal with certain matters and attorney B to deal with others, this is also incompatible with attorney equality. Instead separate LPAs can be used to more clearly delineate responsibilities (but this must be done carefully).
- The judge agreed that the OPG could seek removal of wording from an LPA if a person asks in their LPA for their attorneys to make decisions on a majority basis. This is inconsistent with the idea of attorney equality. Removal of the wording would, one assumes, mean that the attorneys would be left needing to act unanimously as is usually be the case (one of the nine applications was distinguished on its facts on this point, however).
- The legislation allows the interpretation that a second replacement attorney can be appointed. This fits with the overarching policy of donor autonomy. For example, the donor appoints person A as their attorney with person B as replacement. Person C could be appointed as replacement for B as a further 'back up'.
While LPA forms can appear straightforward (and putting them in place can be simple for many people) they are powerful documents granting others the right to look after your property, finances, and care and, therefore, should be drafted with attention.
Advice should be taken when putting LPAs in place particularly if you (or your client) wish to add personalised wishes or utilise multiple LPAs for different asset groups.
It becomes clear that divergence between the language of the statute and the language of the forms does not merely create “an unsatisfactory tension”... but something rather more dangerous than that.