When power of attorney is invalid

A lasting power of attorney granted more than a decade ago has been revoked by the courts, which found the person did not have the capacity to agree to it at the time. Anyone involved in making such an arrangement needs to get it right first time, advises Belinda Schwehr.

Hands on table at meeting

More than five million people in the UK have lasting power of attorney agreements (LPA), a system used by families to manage their loved ones’ affairs.

Given LPAs’ widespread use, it is significant that the court of protection recently overturned one such agreement granted to relatives in 2009 to a man
aged 60 at the time of the court hearing. It was revoked when its validity came into question more than a decade after being granted.

Why? The judge decided that the man, who has a learning disability and schizophrenia, had lacked capacity at the time it was drawn up.

No capacity, no authority

If the man did not have capacity to execute the LPA, then no authority had been given to his relatives to manage his affairs.

This judgment underlines that the test for granting LPAs for property and finance matters rests on more than merely knowing that you need help regarding money and going along with the idea that this would be beneficial.

The test for granting an LPA rests on more than merely knowing you need help and going along with the idea that this would be beneficial

It also offers much-needed clarity on what must be considered what people should consider when setting up an LPA. In making his decision, Mr Justice Poole stated that “although it is not uncommon for the courts to determine past capacity to execute an LPA, there is a dearth of published authority on the issue”.

LPAs, introduced in 2007, enable a person (the donor) to grant someone they trust (the attorney) the legal authority to make decisions on their behalf if they lose mental capacity in the future.

This attorney decides on issues about the donor’s welfare, money or property. LPAs are legal documents and are registered with the Office of the Public Guardian (OPG).

The man at the heart of the case lived in a care home. In 2019, the home manager raised concerns with the OPG about the management of his financial affairs. This triggered the court case.

Back in 2009, however, everything seemed in order. The man was over 18 at the time the LPA was made, the correct form was used, formalities were complied with, the requirements for execution under the regulations were met and the OPG duly registered the LPA.

His relatives said he did have capacity then and that JH, the legal executive who was the certificate provider (the independent person required to sign and witness the document) at the law firm clearly assessed his capacity at the time.

The man’s relatives said he had deteriorated significantly since 2009 because of the dual impact of having to move out of the family home and the death of his mother.

Family members told the court of his love of the arts, his enjoyment of books (including at one point, a series of books about Queen Victoria) and his pleasure in playing the banjo.

When he lived with his mother, for example, he would go to the shops by himself, sometimes to buy ingredients with which he would cook them both a meal. He used local buses.

Even now, they said, he remained independent in dressing, preparing and eating food, and with his personal hygiene.

The judge said that it was always necessary to consider what constituted “relevant information” in relation to executing an LPA.

A donor should understand what an LPA is, why they want to make it, who they are appointing as attorney, why they have chosen this person and what powers they are being given.

If a donor is able to retain this relevant information for only a short period, this does not mean they not able to such a decision.

To have the capacity to execute an LPA, the donor should be able to understand, retain and use the relevant information.

The degree of understanding needed to create an enduring power of attorney was considered in a previous case, Re K, Re F in 1988. A later case, Re Collis in 2010, is the only one that concerns how much capacity one needs for an LPA.

Essentially, a person must be able to read or be able to say that the document has been explained to them and that it expresses their intention and their choice.

In the case of the 60-year-old man, JH had written his credentials against his signature on the LPA form: “Executive in legal firm – long term experience in creating EPAs and LPAs and ability to assess donor’s capacity to understand what an LPA is – it’s [sic] importance – and the effect of the powers that are being given.”

JH did not mention on the form that the man had a learning disability. The court noted this and said it had no information about JH.
The firm he worked for no longer existed. The court could not know if he was still in practice would be able to shed light on his experience in 2009 of dealing with people with a learning disability, on his usual practice or on the events involving this LPA client.

No recall of advice

In oral evidence, one family member remembered that the meeting in private between JH and the man had lasted about 30 minutes. She did not witness JH giving advice or an explanation of the LPA.

She thought, though, that her relative had understood because he had said afterwards that he had signed a very important paper and he was aware
that his relatives would be looking after his money.

In 2009, he could handle “pocket money” given to him rather than managing all his finances himself, she added. He had deteriorated significantly in recent years.

The man might have understood he was signing something important to do with money but not the scope of the LPA powers

In 2019, the evidence from the care home was that “he has been assessed and deemed safe to go out into the village unaccompanied most days. However… he will compulsively buy sweets and toys so his pocket money is rationed each day… and he will spend whatever he has in his pocket and has been caught shoplifting on several occasions.”

The man might have understood he was signing something important, it was to do with money and people he knew and trusted were going to look after this for him.

However, the evidence showed he had no understanding of the scope of the LPA powers, when they could be used or the consequences of not signing the document.

Consultant in old-age psychiatry Dr Andrew Ntanda told the court the man did not understand what he was signing or the consequences.

“I asked [him] about the LPA and he said ‘I can remember signing something when my mum was with us. They were doing this will thing and they wondered how long it would be and whatever at the time’.

“I tried to explain what an LPA was – he still didn’t understand or retain the information I presented to him.

“He was not aware that both [family members] were his attorneys. He stated that one sorted out his money, and that he had nothing to do with that person’s wife. He wasn’t aware that she was also an attorney.

“He didn’t understand what authority an LPA had, nor why it might be necessary or expedient to revoke the power. He didn’t want the LPA revoked and said… he wouldn’t want anyone else to look into his finances.”

Ntanda’s opinion was the man’s learning disability would have been static and it was is likely he would have also lacked capacity to execute an LPA in 2009.

The family’s evidence about the man’s deterioration did not persuade the court that his ability to understand, retain and use the relevant information would have been materially different in December 2009 than at the time of Ntanda’s assessment.

The court accepted, though, that it should not set the bar too high.

Furthermore, the fact that a person may not have understood every provision in the LPA or every possible consequence of making it (or not) does not necessarily mean they could not have understood explanations given in an appropriate way, for example by using simple language.

Taking all this into account, the court decided that the LPA had not been validly made in 2009.

Ideally, the court said, where there is a dispute about past capacity which the court is required to determine, it would be helpful to have certain evidence (see bottom of this page).

There was absolutely no suggestion of the man being unduly influenced. The evidence showed that his mother wanted to make arrangements to provide for him in the event of her death and was advised to create an LPA.

He was then asked to the solicitor’s office to sign the documentation.

He did not instigate the process but was complying with one initiated by his mother.

In that situation, under section 14 of the Mental Capacity Act 2005, those given power of attorney are protected in relation to what they thought they had powers to do, unless they knew an LPA had not been created or there were circumstances that would have terminated their authority to act.

This important case exposes the pitfalls in the power of attorney process and underlines the vital need to get it right first time.

Evidence needed to show capacity in the past

This case highlighted the evidence required in case of a dispute about past capacity at the time a lasting power of attorney (LPA) had been made. The judge said the following information would help courts reach a decision:

  • The certificate provider’s experience, their usual practice or their recollections of making that LPA
  • Evidence from carers and family about someone’s capacity to execute an LPA and about changes in their condition that could affect this over time
  • Medical evidence, capacity assessments, benefits assessments, records from carers or activity centres and other professional evidence roughly contemporaneous with the date of the LPA
  • An assessment by a suitably qualified and experienced person of current capacity, and their reasoned opinion as to their capacity to execute the LPA at the time

Case reports
The Public Guardian v RI and Ors (2022) EWCOP 22. 
Re K, Re F [1988] 1 All ER 358 (quoted in Re Collis)
Re Collis. 27 October 2010 (unreported). National Archives.