OPG v PGO, MAB, MJD [2019] EWCOP 13

The case of the Office of the Pubic Guardian v PGO, MAB , MJD [2019] EWCP concerns the defective execution of a Lasting Power of Attorney (hereafter ‘LPA’) which resulted in the registration being cancelled.

In 2016, BGO, a woman in her eighties executed two separate instruments, one a LPA for Health and Welfare and one a LPA for Property and Financial Affairs. The LPA’s were subsequently registered at the Office of the Public Guardian (hereafter ‘OPG’). One of the financial institutions where the registered Property and Financial Affairs LPA was sent, noticed BGO’s signature had been witnessed by one of her attorneys. This is contrary to regulations.

The attorney wrote to inform the OPG of the irregularity in execution. The OPG applied to the Court of Protection (hereafter ‘COP’) for a determination as to whether or not the requirements for the creation of an LPA were met, and directions as to whether the OPG should cancel the registration of the instrument.

SJ Hilder held that the regulations were mandatory and, as a consequence, she had no choice but to direct the cancellation of the registration of the LPAs (paragraph 17 of the Judgement).

For many donors, the failure of their LPA because of a defect in execution can be overcome by the relatively simple step of granting fresh powers, taking care to ensure that the requirements are met. Unfortunately this option was not open to BGO, who had by such time lost capacity and thus unable to make this decision for herself.

The advice given to BGO by SJ Hilder in absence of any valid attorneys was to make a fresh application. However the new application would be for a Deputyship order for Property and Financial affairs, as BGO was no longer capacitious and therefore able to execute LPAs. This process can take a further four – six months.

In relation to BGO’s health and welfare matters, SJ Hilder advised that the COP rarely appoints Deputies a general power for Health and Welfare decisions, although it is possible. The COP welcomes applications requiring specific decisions to be made about P’s health and welfare. For example, this can include a decision on where P should reside or whether P has the capacity to refuse a specific type of treatment.

This may appear to be an unfair decision as BGO intended to appoint her attorney’s with the only irregularity being the identity of signing witness.

SJ Hilder reminded the Court that a Lasting Powers of Attorney is a powerful document and inevitably there will be those who seek to obtain powers wrongfully. For this reason, it is imperative to set a precedent and insist on proper execution and strict adherence to formality. Dissenting, SJ Hilder commented that an independent witness to the Donor’s signature is itself an important safeguard for the expression of genuinely autonomous decisions.

How to ensure your LPA is valid?

The legal framework for LPA’s is set out in sections 9 – 14 of the Mental Capacity Act 2005, with the formal requirements set out in Schedule 1.

Once you have completed the LPA forms, the next main steps summarised from Schedule 1 are:

1. Sign the forms where indicated, along with the attorneys. 2. Each signature on the LPA form must be witnessed by another. 3. Witnesses must be over the age of 18, and it is always recommended to use completely unrelated third parties such as friends or neighbours. 4. Attorneys cannot witness the donor’s signature, as demonstrated in the above case. 5. Although there is nothing to stop attorneys witnessing other attorney’s signatures…

Once signed the LPA forms can be registered with the OPG. Registration can take up to 10 weeks. Importantly, attorneys cannot act under the power granted by the instrument until registration has been completed.

What does this mean?

It is important that you ensure that the LPA forms are correctly prepared and signed in line with the regulations and that once signed the LPA forms are registered promptly with the OPG.

Otherwise, if mental capacity is lost like in BGO’s case and then an error in the forms is found, or the LPA forms have not yet been registered with the OPG then the only remaining option is to make a fresh application for a Deputyship order incurring additional time and expense.