Lasting Power of Attorney registered despite extensive conditions
In the recent case of Re XZ, the Court of Protection has ordered the Office of the Public Guardian to register a Lasting Power of Attorney (LPA) despite the fact that the person making it (the donor) had imposed a number of conditions and restrictions specifying when and how the LPA can be used.
In December 2013, the donor executed an LPA for his property and financial affairs. The donor was described as being of a cautious nature who preferred to be in control of his own financial affairs. Because of this, he inserted extensive complex safeguards into the LPA to ensure that such control was retained.
One of the conditions permitted the attorneys to make decisions only where they reasonably believed that at the time of the decision, the donor lacked capacity. The belief that the donor lacked capacity had to be supported by two psychiatric reports. In addition to this condition, the attorneys were forbidden from acting for the donor until 60 days had passed from the loss of capacity, except in emergencies.
Furthermore, the donor appointed a person described as his "protector" who was given a power to overrule any psychiatrist's certificate which said that the donor had lost capacity.
The Office of the Public Guardian initially refused to register the LPA on the ground that the conditions included in the LPA were an unreasonable fetter on the attorneys "power to act" and therefore were ineffective as part of an LPA.
The Court of Protection disagreed with the Office of the Public Guardian's decision and the donor's counsel stated that it is no part of the Office of the Public Guardian's statutory duties to police the practicality or utility of individual aspects of an LPA.
The Court of Protection accepted the submission by the donor's counsel and ruled that the Office of the Public Guardian did not have any right to make a paternalistic judgment on behalf of the donor.
There are new LPA forms due to come in to force on 1 July 2015 which ask the donor "when can your attorneys make decisions?"
If donors are considering making lasting powers of attorney then it is necessary for them to obtain legal advice to ensure that the donor's wishes are carried out effectively.
Posted on: 08/06/2015
This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.
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