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Many LPAs likely to now be formally invalid - what does this mean for me?

View profile for Amy Dutton
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Is it possible to apply for a Lasting Power of Attorney during COVID-19?

The recent case of TA v The Public Guardian [2023] EWCOP 63, concerned a 92-year-old lady (‘KA’ and the protected person ‘P’) who resided in a care home and had three children, including TA (the appellant). In 2019, KA executed a Lasting Power of Attorney (LPA) for property and affairs in favour of all three of her children on a joint and several basis, then in 2020, KA revoked that LPA. In 2021, KA then made two further LPAs, one for property and affairs, and one for health and welfare. KA appointed TA as the sole attorney, and these were registered with the Office of the Public Guardian (‘OPG’). Both of the 2021 LPAs had the same certificate provider, known as ‘X’ and this was TA’s ex-mother-in-law and a close family friend of KA.

In September 2021, one of KA’s son’s instructed solicitors with a view to seeking the revocation of the LPAs in favour of TA and executing a new LPA in favour of all three children, as was initially in place. The solicitor instructed attended upon KA, and took the view that KA lacked capacity to execute new LPAs. An investigation then followed by the OPG in respect of the 2021 LPAs in favour of TA. Following this, an application was made by the OPG to the Court of Protection, seeking the revocation of the 2021 LPAs in favour of TA, on the basis that they were invalid.

As part of the investigation, the OPG asked X various questions and she provided her responses in writing. In her response, X set out her relationship with KA (including that she had known her for 50 years); that she had last spoken with KA in December 2020 before she made the property and affairs LPA in January 2021, and that she spoke with her again in March 2021 before she made the health and welfare LPA in April 2021. X confirmed that she had a discussion with KA about the LPAs and set out that she asked KA if she was happy about it, and KA confirmed that she was. X also set out that she spoke with KA over the telephone and did not feel that KA was under any pressure to make the LPAs, that KA sounded cheerful and in good spirits, and sounded like her normal self. Further, X set out that KA did not express any wishes about her attorneys should act. X then went on to say that TA had always been a caring daughter and that TA and KA, had a loving and close relationship. X also set out that TA had always acted in KA’s best interests.

A Court of Protection special visitor was instructed to attend upon KA in December 2021 and commented that when KA was asked who she would trust most to help her manage her money, KA responded this would be her son, HC, who was an accountant and the eldest child. When the special visitor told KA that she had made an LPA naming TA only, KA responded that she wanted all three of her children to agree on the decisions. KA was unable to offer any reasons or explanations for appointing TA only, and when asked if she was happy for TA to have sole responsibility, she again repeated that she wanted all three of her children to make decisions together.

The decision

The OPG’s application that the 2021 LPAs were invalid, came before HHJ McCabe and the key issue was the extent of the duties owed by an individual who provides a certificate under Schedule 1 paragraph 2 (1) (e) of the Mental Capacity Act 2005 (‘MCA’). In particular, whether the duty of the certificate provider is simply to provide a certificate or is the duty to hold an opinion on those matters set out in paragraph 2(e). This sets out that:

The instrument must include… a certificate by a person of a prescribed description that, in his opinion, at the time when the donor executes the instrument –

  1. The donor understands the purpose of the instrument and the scope of the authority conferred under it;
  2. No fraud or undue pressure is being used to induce the donor to create a lasting power of attorney, and
  3. There is nothing else which would prevent a lasting power of attorney from being created by the instrument.

The determination of the Judge was that the certificate provider is required to provide an opinion, not just to witness a signature, and that they must take some steps to satisfy themselves of the matters set out section 2(e). The Judge further commented that to exercise its powers under section 22 of the MCA (to determine whether one or more of the requirements for creating an LPA have been met), the Court must be entitled to look for evidence that the requirements have been met. If the certificate provider does not satisfy themself of those matters set out in paragraph 2 (1) (e), then they are out with the requirements of the section. She was not satisfied that X asking KA if she was happy with the LPA was enough and therefore deemed the LPAs to be invalid.

TA subsequently appealed this decision, and the matter was listed before Mrs Justice Lieven, who agreed that the position adopted by HHJ McCabe was correct and the appeal was dismissed. Mrs Justice Lieven commented that the issue was one of statutory interpretation and found that: firstly, paragraph 2 (1) (e) explicitly requires a certificate to have specific content, namely an opinion on the three matters outlined within this paragraph; secondly, that a valid certificate must therefore be based on an opinion about those matters; that if evidence demonstrates the certificate provider did not have such an opinion, the certificate would be invalid, and that the court is entitled to check that the requisite opinion was formed.

Mrs Justice Lieven commented that paragraph 2 (1) (e) goes beyond capacity and the certificate itself is an important part of the procedure to ensure that a valid instrument has been entered and that it provides safeguards so that the donor understands the instrument, is not subject to fraud or undue pressure and there are no other barriers to the LPA.

Consequences of the decision

In order for the certificate to be valid, there must be evidence of a valid opinion that has been ‘properly formed’. Therefore, merely showing that a certificate has been signed by the certificate provider is not sufficient. Essentially, this means that if there is ever an enquiry in the future into the certificate or its validity, the provider will now most likely need to set out the process that they went through in order to satisfy themselves of the matters set out at paragraph 2 (1) (e). Although no guidance has been issued in respect of what is expected of a certificate provider, it is anticipated that some form of evidence of a valid opinion must be provided.

Following this decision, it is anticipated that there are many LPAs that are now invalid on a formal basis, even where a donor retained capacity and was not subject to any undue influence. Where an LPA has been executed and for example, a neighbour has been asked to act as a certificate provider and does not apply their mind to the questions or the process as set out in paragraph 2 (1) (e), if someone then wishes to challenge the LPA, this may lead to a situation where the LPA is invalid, even though there is no dispute that the donor had capacity and was not subject to undue influence.

It is vital to ensure that upmost thought and consideration is given when selecting someone as your attorney to make important decisions about your health, welfare, or finances, in the future and most importantly, that any LPA is correctly executed. If you have any queries regarding a disputed LPA or have any queries, our Court of Protection team are able to assist and can be contacted on 01616 966 229.