Page 8 - Community Living Magazine 36-1

legal: lasting power of attorney
When power of attorney is invalid

A lasting power of attorney granted more than a decade ago has been revoked by the courts,
which found the person did not have the capacity to agree to it at the time. Anyone involved in
making such an arrangement needs to get it right first time, advises Belinda Schwehr

ore than five million people in It also offers much-needed clarity on The man at the heart of the case lived in
the UK have lasting power of what must be considered what people a care home. In 2019, the home manager
Mattorney agreements (LPA), a should consider when setting up an LPA. raised concerns with the OPG about the
system used by families to manage their In making his decision, Mr Justice Poole management of his financial affairs. This
loved ones’ affairs. stated that “although it is not uncommon triggered the court case.
Given LPAs’ widespread use, it is Back in 2009, however, everything
significant that the court of protection seemed in order. The man was over 18 at
recently overturned one such agreement The test for granting an LPA the time the LPA was made, the correct
granted to relatives in 2009 to a man rests on more than merely form was used, formalities were complied
aged 60 at the time of the court hearing. with, the requirements for execution
It was revoked when its validity came knowing you need help and under the regulations were met and the
into question more than a decade after going along with the idea that OPG duly registered the LPA.
being granted. His relatives said he did have capacity
Why? The judge decided that the man, this would be beneficial then and that JH, the legal executive who
who has a learning disability and was the certificate provider (the
schizophrenia, had lacked capacity at the independent person required to sign and
time it was drawn up. for the courts to determine past capacity witness the document) at the law firm
to execute an LPA, there is a dearth of clearly assessed his capacity at the time.
No capacity, no authority published authority on the issue”. The man’s relatives said he had
If the man did not have capacity to LPAs, introduced in 2007, enable a deteriorated significantly since 2009
execute the LPA, then no authority had person (the donor) to grant someone they because of the dual impact of having to
been given to his relatives to manage trust (the attorney) the legal authority to move out of the family home and the
his affairs. make decisions on their behalf if they lose death of his mother.
This judgment underlines that the test mental capacity in the future. Family members told the court of his
for granting LPAs for property and finance This attorney decides on issues about love of the arts, his enjoyment of books
matters rests on more than merely the donor’s welfare, money or property. (including at one point, a series of books
knowing that you need help regarding LPAs are legal documents and are about Queen Victoria) and his pleasure in
money and going along with the idea that registered with the Office of the Public playing the banjo.
this would be beneficial. Guardian (OPG). When he lived with his mother, for
example, he would go to the shops by
himself, sometimes to buy ingredients
with which he would cook them both a
meal. He used local buses.
Even now, they said, he remained
independent in dressing, preparing and
eating food, and with his personal hygiene.
The judge said that it was always
necessary to consider what constituted
“relevant information” in relation to
executing an LPA.
A donor should understand what an LPA
is, why they want to make it, who they are
appointing as attorney, why they have
chosen this person and what powers they
are being given.
If a donor is able to retain this relevant
information for only a short period, this
does not mean they not able to such
a decision.
To have the capacity to execute an LPA,
the donor should be able to understand, Van Tay Media/Unsplash
retain and use the relevant information.
The degree of understanding needed to
A person must understand the document and agree it expresses their intention and their choice create an enduring power of attorney was

8 Vol 36 No 1 | Autumn 2022 Community Living www.cl-initiatives.co.uk