Validity of existing LPAs should be reviewed in light of EWCOP case decision

Monday, 20 May 2024
The England and Wales Court of Protection's decision in the recent case of TA v Public Guardian (2023 EWCOP 63) potentially renders existing lasting powers of attorney (LPAs) invalid even in circumstances where the capacity of the donor is not an issue in dispute, according to law firm Wrigleys.
Image of LPA form

The TA ruling established that a certificate provider must ensure before signing the LPA that the donor fully understands its purpose and significance, and not merely confirm that the donor has capacity. If this has not happened, the LPA can be declared invalid and cancelled if it is later challenged on any ground.

It was already the case before TA that the certificate provider must have known the donor for at least two years or be a relevant professional, such as a solicitor or doctor, who has the required skills to make this judgement. But the TA ruling makes it clear that they must actually exercise their judgement, not just rubber-stamp the instrument.

In TA, the validity of the existing LPAs was called into question when one of the donor's children instructed a solicitor with a view to revoke them in favour of new ones appointing all three children as attorneys. It was determined at this point that the donor lacked mental capacity and an investigation was undertaken as to the making of the LPAs. It found that the certificate provider had not gone far enough to satisfy herself of the key requirements under paragraph 2(1)(e) Schedule 1 of the Mental Capacity Act 2005 (MCA 2005) regarding the donor's understanding and lack of undue pressure or fraud. The LPA was duly ruled invalid.

The power to set an LPA aside exists in s.22 MCA 2005, though in practice it is unlikely to happen unless someone raises the issue of validity after the making of the LPA. In many cases an issue will not be raised, perhaps because there is no other person concerned and the Office of the Public Guardian (OPG) is not aware of the circumstances, says Alex Ruck Keene TEP of 39 Essex Street Chambers. Thus, most LPAs will probably never be challenged.

However, the number of disputes over them is increasing along with the number of registered LPAs in place, and there could be many other circumstances, not necessarily related to capacity, in which an LPA is challenged. It may now be easier to show that it was never valid.  

'As a result of this case, certificate providers should approach undertaking this role with caution and should satisfy themselves that they understand the requirements of their role to safeguard the donors' interests and to avoid a LPA being invalid', commented Hannah Allen and Kelly Edmundson of Wrigleys.

  • The Powers of Attorney Bill completed its parliamentary passage in September 2023. It will amend the MCA 2005 to make several substantial changes to the procedure for making LPAs in England and Wales, in particular enabling the OPG to introduce a new digital process, alongside an improved paper process.

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