Landmark court case gives reassurance on the control Attorneys can exercise

Published: 27/07/2015

When setting up a Lasting Power of Attorney (LPA) one area where clients can sometimes have concerns is in giving an Attorney premature control when there might be any doubts about the client’s loss of capacity. A recent case gives some reassurance about this.

An LPA is a legal document where you (the Donor) appoint an Attorney(s) to look after your affairs if you are unable to do so. A Property and Financial LPA allows an Attorney to make decisions about the Donor’s finances and property. Without an LPA no one, not even a spouse or partner can take charge of an individual’s finances and, for example, pay critical bills such as energy bills.

The recent case concerns a Donor who wanted to put a Property and Financial LPA in place so that his affairs could be managed in the event that he lost capacity. However he had concerns, such as a worry that the Attorney’s may take control of his affairs when there was some doubt as to whether he had really lost capacity. To address this he asked that some restrictions were put in place, for example, the Donor’s mental incapacity must be established by two psychiatrists – qualified as stipulated in the LPA.

The Public Guardian, who registers LPAs refused to register this one stating that the restrictions were ‘ineffective’ as part of an LPA and that the LPA could only be registered if all the restrictions were struck out. The Donor engaged a law firm and applied to the Court of Protection to challenge the Public Guardian’s decision.

The Court of Protection held that the Public Guardian had failed to identify any legal basis for striking out provisions of the LPA and refusing to register the document and directed that the LPA was valid and directed the Public Guardian to register it.

Head of Wills and Probate, Linda Cummins reflects on this decision:

“The outcome of this case is very reassuring for clients who are keen to make an LPA because they can see the benefit of this but are concerned that if they appoint an Attorney that Attorney might act prematurely, before their incapacity has been conclusively proved.

Lasting Powers of Attorney offer valuable protection for family members if an individual loses their capacity. This landmark court case gives anyone who is planning to make an LPA reassurance on the control Attorneys can exercise.”

Content correct at time of publication

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