Introduction

Welcome to the November 2015 Newsletters. Highlights this month include:

  1. In the Health, Welfare and Deprivation of Liberty Newsletter, a decision about deprivation of liberty in hospital and the meaning of state detention under the Coroners and Justice Act 2009, and the final instalment in the Rochdale deprivation of liberty saga;
  2. In the Capacity Outside the CoP newsletter, an introduction to the work of the new National Mental Capacity Forum from its Chair, Baroness Finlay;
  3. In the Practice and Procedure Newsletter, an update on the regionalisation of the Court of Protection;
  4. In the Property and Financial Affairs Newsletter, a number of decisions concerning powers of attorney;
  5. And in the Scotland Newsletter, the annual report of the Mental Welfare Commission for Scotland.

We also take this opportunity to remind readers that where one of the Newsletter editors is instructed in an ongoing case which is summarised, that editor does not  play any part in  drafting the summary or comment.

And remember, you can now find all our past issues, our case summaries, and much more on our dedicated sub-site here.

Provision for replacement attorneys

Miles and Beattie v The Public Guardian [2015] EWHC 2960 (Ch)

Lasting power of attorney – replacement attorneys

Summary

This is the reported decision of Nugee J in relation to an appeal from a decision of Senior Judge Lush. There was a short note in relation to this decision in the July 2015 Newsletter and the Senior Judge’s decision at [2014] EWCOP 40.

The donors of the LPAs in question had wanted to achieve the result that they appointed joint deputies but on the death or inability to continue of one, the survivor was reappointed to act alone. The LPAs were not happily drafted and the Senior Judge held in any event that the current regime precluded such an appointment and severed those parts of the LPAs that attempted to provide for survivorship.

The donors appealed and Nugee J held that there was nothing in the MCA that prevented a donor, as had been attempted here, from appointing A and B jointly or jointly in respect of some matters and severally in respect of others providing that on the death or inability of one, the survivor should be reappointed under  section 10(8) (b) MCA, see paragraphs 20 and 21 of the judgment.

At paragraph 24, Nugee J set out a form of words that would achieve that result and provide for a replacement when both A and B could not act. In the result, the court allowed the appeal and the registration of the powers with some unnecessary and confusing words being excised.

At paragraph 41, Nugee J stated that a difficulty would arise if the replacement attorney is simply described by his office (eg senior partner in X firm of solicitors). In relation to an appointment made there and then it would be possible for that person to be identified and complete the appropriate parts of the form, but that is not so in relation to a replacement attorney as who might be in that office at the time when the replacement takes effect is not known when the LPA is made.

LPA revoked but attorney appointed as deputy

RE AMH; The Public Guardian v ALH and KEH [2015] EWCOP 70

Lasting powers of attorney – identity of attorney

Summary

In this case Senior Judge Lush was confronted with an application by the Public Guardian in the first instance to require a property and affairs attorney under a LPA to provide an account of dealings and if such an account was not provided for an order revoking the power and appointing a panel deputy.

The investigation revealed that the attorney did not really understand the duties of an attorney and in some respects had fallen short of what is required (by failing properly to deal with P’s main asset, her former home, and making unnecessary purchases on P’s behalf).

The Senior Judge  thus concluded that the LPA should  be  revoked  but,  unusually  (and  at  the suggestion of the Public Guardian) appointed the attorney as deputy.

He did this as he felt that with the supervision and assistance that would go with the deputyship, the best interests of P would be properly served and that in that way P’s expression of her wish that the attorney should look after her property and affairs would be respected.

As often is the case, the Senior Judge referred to the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and to Baroness Hale’s emphasis of its importance in Cheshire West at paragraph 36.

Limits to the powers of an attorney

Northamptonshire County Council v RG  and others [2015] EWCOP 66 

Enduring power of attorney – best interests

In this case the Senior Judge revoked an EPA. On the way, at paragraph 39 he repeated what Lewison J held in Re  P (Statutory Will) [2009] EWHC   (Ch);   [2009]   COPLR   Con   Vol   906,   at paragraph 42, namely;

"I would add that, although the fact that P makes an unwise decision does not on its own give rise to any inference of incapacity (s. 1(4)), once the decision-making power shifts to a third party (whether carer, deputy or the court) I cannot see that it would be a proper exercise for a  third party decision-maker consciously to make an unwise decision merely because P would have done so. A consciously unwise decision will rarely, if ever, be made in P's best interests."

And at paragraph 43 he reminded us that; “Attorneys cannot usually delegate          their authority to someone else. They must carry out their duties personally. Of course, they may seek professional or expert advice when appropriate (for example, investment advice from a financial adviser or legal advice from a solicitor), but they cannot as a rule allow someone else to make a decision   that   they   have   been   appointed   to make.”