Page 9 - Community Living Magazine 36-1

legal: lasting power of attorney

considered in a previous case, Re K, Re F “He didn’t understand what authority
in 1988. A later case, Re Collis in 2010, is Evidence needed to show an LPA had, nor why it might be necessary
the only one that concerns how much capacity in the past or expedient to revoke the power. He
capacity one needs for an LPA. didn’t want the LPA revoked and said… he
Essentially, a person must be able to This case highlighted the evidence wouldn’t want anyone else to look into
read or be able to say that the document required in case of a dispute about his finances.”
has been explained to them and that it past capacity at the time a lasting Ntanda’s opinion was the man’s
expresses their intention and their choice. power of attorney (LPA) had been learning disability would have been static
In the case of the 60-year-old man, JH made. The judge said the following and it was is likely he would have also
had written his credentials against his information would help courts reach lacked capacity to execute an LPA in 2009.
signature on the LPA form: “Executive in a decision: The family’s evidence about the man’s
legal firm – long term experience in l l The certificate provider’s experience, deterioration did not persuade the court
creating EPAs and LPAs and ability to their usual practice or their that his ability to understand, retain and
assess donor’s capacity to understand recollections of making that LPA use the relevant information would have
what an LPA is – it’s [sic] importance l l Evidence from carers and family been materially different in December 2009
– and the effect of the powers that are about someone’s capacity to than at the time of Ntanda’s assessment.
being given.” execute an LPA and about changes The court accepted, though, that it
JH did not mention on the form that the in their condition that could affect should not set the bar too high.
man had a learning disability. The court this over time Furthermore, the fact that a person may
noted this and said it had no information l l Medical evidence, capacity not have understood every provision in
about JH. assessments, benefits assessments, the LPA or every possible consequence of
The firm he worked for no longer records from carers or activity making it (or not) does not necessarily
existed. The court could not know if he centres and other professional mean they could not have understood
was still in practice would be able to shed evidence roughly contemporaneous explanations given in an appropriate way,
light on his experience in 2009 of dealing with the date of the LPA for example by using simple language.
with people with a learning disability, on l l An assessment by a suitably Taking all this into account, the court
his usual practice or on the events qualified and experienced person of decided that the LPA had not been validly
involving this LPA client. current capacity, and their reasoned made in 2009.
opinion as to their capacity to Ideally, the court said, where there
No recall of advice execute the LPA at the time is a dispute about past capacity which
In oral evidence, one family member More detail on this is given in the court is required to determine, it
remembered that the meeting in private paragraph 27 of the judgment listed at would be helpful to have certain evidence
between JH and the man had lasted about the end of the article. (see box).
30 minutes. She did not witness JH giving There was absolutely no suggestion of
advice or an explanation of the LPA. the man being unduly influenced. The
She thought, though, that her relative pocket and has been caught shoplifting on evidence showed that his mother wanted
had understood because he had said several occasions.” to make arrangements to provide for him
afterwards that he had signed a very The man might have understood he in the event of her death and was advised
important paper and he was aware was signing something important, it was to create an LPA.
that his relatives would be looking after to do with money and people he knew He was then asked to the solicitor’s
his money. and trusted were going to look after this office to sign the documentation.
In 2009, he could handle “pocket for him. He did not instigate the process but
money” given to him rather than However, the evidence showed he had was complying with one initiated by
managing all his finances himself, she no understanding of the scope of the LPA his mother.
added. He had deteriorated significantly powers, when they could be used or the In that situation, under section 14 of
in recent years. consequences of not signing the document. the Mental Capacity Act 2005, those given
Consultant in old-age psychiatry power of attorney are protected in
Dr Andrew Ntanda told the court the man relation to what they thought they had
The man might have did not understand what he was signing powers to do, unless they knew an LPA
understood he was signing or the consequences. had not been created or there were
“I asked [him] about the LPA and he said circumstances that would have
something important to do ‘I can remember signing something when terminated their authority to act.
with money but not the scope my mum was with us. They were doing This important case exposes the pitfalls
of the LPA powers this will thing and they wondered how in the power of attorney process and
long it would be and whatever at the time’.
underlines the vital need to get it right
“I tried to explain what an LPA was – he first time. n
still didn’t understand or retain the
In 2019, the evidence from the care information I presented to him. Case reports
home was that “he has been assessed and “He was not aware that both [family The Public Guardian v RI and Ors (2022)
deemed safe to go out into the village members] were his attorneys. He stated EWCOP 22. https://www.bailii.org/ew/cases/
EWCOP/2022/22.html
unaccompanied most days. However… he that one sorted out his money, and that Re K, Re F [1988] 1 All ER 358 (quoted in
will compulsively buy sweets and toys so he had nothing to do with that person’s Re Collis)
his pocket money is rationed each day… wife. He wasn’t aware that she was also Re Collis. 27 October 2010 (unreported).
and he will spend whatever he has in his an attorney. National Archives. https://tinyurl.com/4b4uwzjk

www.cl-initiatives.co.uk Community Living Vol 36 No 1 | Autumn 2022 9