The Public Guardian v TW, KW, HF and SC [2016] EWCOP 18 (Senior Judge Lush)

Lasting   powers   of   attorney   –   revocation   –  suspension  

Summary

In this case the Senior Judge was dealing with an application for the revocation of an LPA and the appointment of a deputy.

The evidence about P’s capacity to revoke  the LPA was ambivalent and the power to revoke cannot be exercised unless P lacks such capacity (s. 22(4)(b) MCA).

The Senior Judge, seemingly on his own initiative, ordered a report from a Court of Protection Visitor and, in the meantime, “suspended” the LPA pursuant to s.23(2)(a) MCA and made an interim deputyship order.

Comment

It is curious that the MCA does not provide the court with an express power to suspend an LPA, because such will on occasion clearly be necessary (the automatic suspension under s.13(4) upon the making of an interim bankruptcy or debt relief restrictions order is different).

Section 23(2)(a) does not, on its face, allow the court to suspend an LPA. Rather, it enables the court to give directions with respect to decisions which the donee of a lasting power of attorney has authority to make. In this case, the court in effect appears to have directed the attorney to make no such decisions thus leaving the way clear for the interim deputy to take over.

We are aware that this section is regularly used in this fashion but there are no reported cases of which we aware in which the basis (or width) of the power to do so has been analysed. We hope that in another case this issue might be explored in more depth.