Choosing who should act as your attorney(s) when making a LPA is one of the most important decisions in the whole process. After all, your nominated attorneys are the people who will potentially be making crucial decisions on your behalf about your health and welfare or property and affairs. It is essential that you appoint people that you trust to make these decisions for you and also nominate people who you think will have the right skill sets and capacity to take on the responsibilities of the role, including looking after complex property and financial affairs for instance.
Appointing replacement and successive replacement attorneys
Given the importance of appointing appropriate attorneys, it is common to also appoint “replacement attorneys”. The idea of doing this is so that a new attorney can step in if your originally appointed attorney(s) is unable or unwilling to act on your behalf. Sometimes, you might wish to appointsuccessive replacement attorneys, i.e. where another replacement attorney succeeds a replacement attorney.
However, until the 2013 decision of the Court of Protection in Office of the Public Guardian v Boff and another (2013) MHLO 88 (LPA), the legislation relating to the appointment of successive replacement attorneys was considered ambiguous. Indeed, in the judgement, Senior Judge Denzil Lush commented that the appointment of successive attorneys had been an “area where angels feared to tread”.
Unsurprisingly, this case held that it is not possible to appoint successive replacement attorneys. Dr Boff made a property and financial affairs LPA which appointed her husband as her attorney. Dr Boff also appointed three replacement attorneys, namely her two sons and her niece, to apply in a strict order of succession. In a witness statement she gave later in the proceedings, Dr Boff elaborated very articulately on why she wanted to appoint her replacement attorneys in this way:
“Because, until five years ago, I had been an attorney for my mother, under an enduring power of attorney that gave joint and several responsibility to me and my siblings, I had some experience to guide me in how I wanted my lasting power of attorney to be executed. Despite my mother’s enduring power of attorney being one giving joint and several powers, my experience was that nearly all financial institutions required attorneys to sign, and sometimes be present in person, causing considerable difficulties in managing my mother’s affairs. Even though the financial institutions were in the wrong, the reality of the experience did not match the legal theory of joint and several responsibility, and so I am determined that my lasting power of attorney shall only grant power to one person at a time. It is my wish that any power of attorney I grant shall only grant powers successively to the persons I name in that power of attorney, and that the succession be determined according to my clearly expressed wishes.”
Dr Boff’s wishes were therefore stated in very clear terms. However, the Office of the Public Guardian (OPG) refused to register Dr Boff’s LPA due to her attempted appointment of successive attorneys and the OPG applied to the Court of Protection to have those provisions severed. Dr Boff objected to the application, in what was the first time that either a donor or an attorney has ever formally objected to an application by the OPG to sever an ineffective provision from an LPA.
Senior Judge Lush considered the Law Commission Reports which led to the enactment of the Mental Capacity Act (MCA) 2005 when making his decision. The reports demonstrated that the Law Commission considered that potential issues might arise if successive attorneys could be appointed. However, the draft bill did not make it clear that successive replacement attorneys could not be appointed. This lack of clarity in the draft bill resulted in section 10 (8) of the MCA 2005 being drafted in arguably ambiguous terms.
The judge held that guidance offered by the OPG and the LPA form itself made it abundantly clear that successive attorneys cannot be appointed. However, Judge Lush was sympathetic to Dr Boff’s stance that section 10 (8) of the MCA 2005 was ambiguous. He did also go on to point out some of the reasons that the appointment of successive attorneys was traditionally unsupported.
While we may empathise with Dr Boff and her very logical attempt to spare her own family the practical problems she herself had faced as an attorney, this decision makes clear that the appointment of successive attorneys will not be accepted.
Alternative options to appoint successive replacement LPAs
Judge Lush did offer what could be taken as a tip to anyone who found themselves in the position where they considered it important to appoint successive attorneys.
He noted that Dr Boff’s only way round the situation would be to execute two different LPAs, the first appointing her husband as her attorney and naming her son as his replacement and then making another LPA appointing her other son as her attorney, naming her niece as that son’s replacement. The second LPA could stipulate that it should not take effect until the first LPA ceased to be operable.
However, while this may be a technical and somewhat academic way of circumventing the issue, it is hardly an efficient or cost effective approach for anyone wishing to appoint successive attorneys.