Category

LPA cases - severance of restrictions incompatible with a Health and Welfare LPA

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Case and summary Date added Categories
Re Baxter [2013] MHLO 75 (LPA)The donor of a Health and Welfare LPA included the following provision: "My attorneys shall have no power to act until they have reason to believe that I have become or that I am becoming mentally incapable of managing my own affairs or that I have become physically handicapped to such a degree that I cannot look after my affairs without significant inconvenience discomfort or difficulty." On the application of the Public Guardian the words "or that I am becoming" and "or that I have become" to "difficulty" were severed. Section 11(7)(a) of the MCA provides that decisions concerning the donor's health and welfare may not be made under an LPA "in circumstances other than those where [the donor] lacks, or the donee reasonably believes that [the donor] lacks, capacity." As previously held in Re Azancot (2009) COP 27/5/09, the donor may not provide for decisions to be made by the attorney when the donor lacks physical capacity but not mental capacity. The words "or that I am becoming" were also inconsistent with section 11(7)(a) because the donor must lack capacity (or be reasonably believed to lack capacity). It is not sufficient that the donor may be "becoming" mentally incapable. The wording of section 11(7)(a) may be contrasted with paragraph 4(1) of Schedule 4 of the MCA, which imposes a duty to apply for registration on an attorney under an EPA when the donor "is or is becoming" mentally incapable. [OPG summary - LPA case.] 2013‑08‑12 22:04:28 2013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript


Re Spaas [2013] MHLO 74 (LPA)The donor of a Health and Welfare LPA included the following provision: "If I become completely mentally or physically incapable for example being unable to recognise my daughter then I wish steps to be taken to end my life as quickly and painlessly as possible. It that was not possible, I would wish the minimum medical intervention possible. I would not want my life unnecessarily prolonged." On the application of the Public Guardian the words from "steps to be taken" to "I would wish" were severed. The donor may have been envisaging assisted suicide, which is unlawful (see Re Gardner (2011) COP 6/7/11) or even expressing a wish for her life to be terminated by others in circumstances which would involve a criminal offence. [OPG summary - LPA case.] 2013‑08‑12 22:00:59 2013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript


Re Sheppard [2012] MHLO 93 (LPA)The donor of a health and welfare LPA included the following guidance: "My attorneys are to maintain the health and welfare needs of X." On the application of the Public Guardian the provision was severed as it is not open to a donor to require attorneys to make health and welfare decisions on behalf of a third party. [OPG summary - LPA case.] 2012‑09‑30 19:16:15 2012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript


Re Kerron [2012] MHLO 92 (LPA)The donor made an LPA for health and welfare, and imposed the following restriction: "If assessed as requiring nursing/residential care I would like to move promptly to a home jointly chosen by myself and my attorneys." On the application of the Public Guardian the words "jointly" and "myself and" were severed on the ground that a health and welfare LPA can only be used when the donor lacks capacity, and if the donor lacked capacity she would not be able to choose a nursing or residential care home. [OPG summary - LPA case.] 2012‑09‑30 19:13:16 2012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript


Re Stewart (2011) COP 9/11/11The donor included the following direction in the guidance section: "I authorise my attorneys to refuse or consent to my deprivation of liberty." The Public Guardian applied for severance on the ground that: "The deprivation of the donor's liberty is only lawful if ordered by the court or done in accordance with the procedures prescribed by law under the Mental Capacity Act 2005 as amended by the Mental Health Act 2007. The donor does not have power to authorise her attorneys to consent to the deprivation of her liberty in the absence of a court order or going through the Deprivation of Liberty Safeguarding procedures." The court determined that the direction was invalid for the reasons given by the Public Guardian. [OPG summary - LPA case.] 2011‑11‑30 21:08:37 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript


Re McGregor (2011) COP 16/11/11The donor appointed attorneys to act jointly in some matters and jointly and severally in others, and directed as follows: "Jointly - decisions on sale of house. Decisions on type of care received if no longer able to stay in own home. Severally - financial matters regarding bank accounts and general cash flow." On the application of the Public Guardian the words "decisions on sale of house" and "Severally - financial matters regarding bank accounts and general cash flow" were severed because they purported to give Health and Welfare attorneys authority to make decisions regarding the donor's property and financial affairs. (The result would be that, by implication, the attorneys would be able to decide jointly and severally all matters other than the type of care the donor would receive if no longer able to stay in his own home.) [OPG summary - LPA case.] 2011‑11‑30 21:07:16 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript


Re Gardner (2011) COP 6/7/11The donor included the following statement in the guidance section of the instrument: "If I am suffering from a terminal illness I would ask that my attorneys assist me in travelling to a country where it is legal for me to take my own life should I choose to do so." On the application of the Public Guardian the court severed the guidance for the following reasons: (i) section 62 of the MCA 2005 provides that nothing in the Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (assisting suicide); (ii) the donor was purporting to authorise the attorneys to commit the criminal offence of assisting suicide, and the fact that a person who assists a suicide is not always prosecuted in England and Wales does not detract from the fact that it remains a criminal offence; (iii) although the statement appeared in the guidance section, it is not open to a donor to provide guidance to the attorneys relating to the commission of a criminal offence. [OPG summary - LPA case.] 2011‑09‑30 22:48:38 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript


Re Azancot (2009) COP 27/5/09The donor of a personal welfare LPA inserted a restriction that her replacement attorneys "may only act under this power in the event that the donor is physically or mentally incapacitated and there is written medical evidence to that effect". The words "physically or" were severed on the application of the Public Guardian, as the effect of section 11(7) of the MCA is that a personal welfare attorney may not make a decision unless the donor lacks mental capacity to make it. (OPG summary.) 2009‑11‑29 21:43:14 2009 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript