OPG asks EWCOP to clarify scope of LPAs in England and Wales

Monday, 12 June 2023
The Office of the Public Guardian (OPG) for England and Wales has brought an application to the England and Wales Court of Protection (EWCOP) asking for judgments on nine consolidated cases. The cases raise issues relating to the scope and ambit of lasting powers of attorney (LPAs).
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Each case deals with a situation that has occurred often enough to require clarification of the relevant statute and regulations in the Mental Capacity Act 2005, which introduced LPAs and appointed the OPG to administer them in England and Wales.

There were six points for which the OPG requested a hearing, encompassing issues relating to lead donees, majority rule and replacement donees.

With respect to lead donees, it asked if it is lawful for an LPA donor to give primary power to one attorney ahead of others, when appointed on a joint and several basis. Further, it asked whether it is lawful to have joint and several appointments with instructions for attorneys to deal with separately defined areas of the donor's affairs, or for the LPA to include restrictions to this effect.

In terms of majority rule, the OPG queried whether severance applications should continue to be made if instruments seek to instruct multiple attorneys to act on a majority basis. It also asked whether an LPA including the word 'should', or similar words, constitutes a binding instruction or a non-binding preference on the part of the donor.

On the point of replacement donees, it asked if it is lawful for the donor to replace a replacement attorney. If not, it queried if a replacement attorney could be reappointed to act solely.

The wording of the complex legislation governing the drafting of LPAs is also inconsistent with the wording of LPA application forms. This has already led to tension and has triggered some judicial comment, such as in Re Public Guardians Severance Applications (2017 EWCOP 10), in which the EWCOP noted the misleading use of terms like 'preferences', 'instructions', 'conditions', 'restrictions' and 'best interests'. In that case, the judge suggested that 'it may be that those responsible for drafting forms will wish to reconsider these changes'.

In the current EWCOP hearing (Re Public Guardians Severance Applications, 2023 EWCOP 24), Hayden J was able to offer guidance on the questions raised, although in some cases, with difficulty.

He held, for example, that primary power cannot be given to one donee ahead of others when appointed on a joint and several basis. He noted that if a donor appoints more than one attorney on a joint and several basis, then equality prevails.

However, the question as to whether it is lawful to have joint and several appointments, with instructions for attorneys to deal separately with defined areas of the donor's affairs, was more problematic. Ultimately, the judge considered that that the wording of the statutory provision does not support the burden of such a purposive interpretation. The divergence between the languages of the statute and the forms was actually 'dangerous', he said, and needed to be revisited.

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