Holly.gif
Open justice | Let us know if you have a tribunal decision you would like to publish (see Re A)
Email updates | CPD scheme

Online forum | Latest topic on forum: NR rights after patient released to care | News

Category

Category:LPA cases - formalities


The old category structure used on this page is comprehensive as it contains every relevant case. The new database structure was introduced in 2019. It is more potentially useful than the old categorisation system: it includes all cases since January 2017, but only a minority of older cases: see Special:Drilldown/Cases. The pages below are initially ordered according to the dates on which they were added to the site (most recent first). The order can be changed by clicking on the symbol beside a column heading: click on the symbol beside "Page and summary" for alphabetical order; click beside "Categories" for the order in which the cases were reported. Click on the arrow symbol again to reverse the order. Click on a page name to view the relevant page. Asterisks mark those cases which have been added to the new database structure.

Case and summary Date added Categories
* LPA witnessed by attorney Re BGO: Office of the Public Guardian v PGO [2019] EWCOP 13 — "Some time later one of the financial institutions to which the registered property and affairs LPA was sent noticed that BGO’s signature on the instrument had been witnessed by one of the attorneys (MAB), which is contrary to the requirements of Regulations. ... The Public Guardian applied to the Court for a determination as to whether or not the requirements for creation of an LPA were met, and directions as to whether the Public Guardian should cancel the registration of the instrument. ... The wording of paragraph 18 of Schedule 1 is mandatory. Because the requirements of execution have not been met, I must direct the Public Guardian to cancel the registration of BGO’s LPAs. ... 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 – an irritation perhaps and an expense but not an insurmountable hurdle. However, that option is not open to BGO. Sadly, before this defect was identified, BGO’s capacity had deteriorated to the point where she is unable to execute fresh LPAs. ... In the absence of attorneys to manage her property and affairs, the Court may appoint a deputy or deputies. ... In respect of health and welfare, the Court may also appoint a deputy or deputies if considered appropriate, although it does so much more rarely. However, pursuant to section 20(5) of the Mental Capacity Act 2005, a deputy cannot be given powers to refuse consent to the carrying out or continuation of life-sustaining treatment. In her welfare instrument, BGO had ticked the box to confirm that she wanted to give her attorneys this power. On the failure of her LPA, there is no means for the Court to give effect to her wishes in this respect. ... The Respondents are invited to make an application for appointment as property and affairs deputies for BGO. ... If the Respondents, or any of them, seek the appointment of a welfare deputy or deputies for BGO, they should also file at Court within 28 days a COP24 statement which sets out any welfare issues which require decisions to be made, why (having regard to s5 of the Mental Capacity Act 2005) an order is needed and why (having regard to section 16(4) of the Act) the decisions should be taken by a deputy rather than the Court." 2019‑04‑25 22:04:21 2019 cases, Cases, Judgment available on Bailii, LPA cases - formalities, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases


Re Gunn [2012] MHLO 97 (LPA) — The donor made LPAs for property and financial affairs and for health and welfare. The donor's signature was witnessed in both LPAs, but in the health and welfare instrument the witness failed to state his address and registration of this LPA was refused by the Office of the Public Guardian. On the attorney's application for an order that the instrument should be treated as if it were in the prescribed form, the court exercised its discretion under paragraph 3(2) of Schedule 1 of the MCA and declared that the instrument was to be treated as if it were an LPA for health and welfare. The court considered it relevant that the witness had stated his full address in the LPA for property and financial affairs which was executed on the same day. [OPG summary - LPA case.] 2012‑09‑30 19:26:33 2012 cases, Brief summary, Judgment does not exist, LPA cases - formalities, No transcript


Re Smith [2012] MHLO 63 (LPA) — The donor appointed two attorneys to act jointly and severally. The LPA was registered by oversight even though one attorney's signature had not been witnessed. The attorney applied for a declaration of validity, and the evidence was that the witness had been present when the attorney signed, but had not signed under the attorney's name. The court dismissed the application, holding that it had no jurisdiction to declare that the LPA was valid. The applicant was directed to return the instrument to the OPG so that his appointment could be marked as invalid in accordance with section 10(7) of the MCA 2005. [OPG summary - LPA case.] 2012‑06‑23 13:28:13 2012 cases, Brief summary, Judgment does not exist, LPA cases - formalities, No transcript


Re Phillips [2012] MHLO 60 (LPA) — The donor appointed three attorneys, A, B and C. She did not name any persons to be notified, and so there were two certificate providers. The Public Guardian refused to register on the ground that one certificate provider, X, was a member of the family of A. He was the unmarried partner of A but did not live at the same address. In his Part B certificate X said: "I am the partner of A and have known the donor for 3 years." The attorney applied to court for a direction to register and the Public Guardian was joined as respondent. The court decided that X was to be treated as a member of the family of A, and so the instrument could not be registered. The judge said: "In my judgment, anyone who describes himself in this context as the attorney's partner is courting trouble and automatically disqualifies himself from being a person who can give an LPA certificate. This applies regardless of whether he describes himself as the attorney's partner intentionally or inadvertently, whether they live at the same address or at separate locations, whether the relationship is intimate or platonic, and whether the statement is true or false." Although it was unnecessary to the decision, the judge added that, even if X were not to be treated as a family member, he was not independent of the attorney, as required by the prescribed LPA form. [OPG summary - LPA case.] 2012‑06‑23 13:14:36 2012 cases, Brief summary, Judgment available on MHLO, LPA cases - formalities, Neutral citation unknown or not applicable, Transcript


Re H [2012] MHLO 21 (LPA) — The donor used the 2007 version of the LPA prescribed form and failed to tick the box to confirm that she had read (or had read to her) the prescribed information on pages 2, 3 and 4. On the attorney's application the court was unable to find on balance of probability that the donor had read (or had read to her) the prescribed information. This was a failure of execution and the court had no discretion to uphold it. [OPG summary - LPA case.] 2012‑03‑19 22:36:29 2012 cases, Brief summary, Judgment available on MHLO, LPA cases - formalities, Neutral citation unknown or not applicable, No transcript


Re Lane [2012] MHLO 15 (LPA) — The donor made an LPA on 3 May 2011 using the 2007 prescribed form. The transitional provisions of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment Regulations) 2009, which introduced new prescribed forms, provide that an instrument executed by the donor before 1 April 2011 on the 2007 prescribed form is capable of being a valid lasting power of attorney. The Public Guardian made an application to the court for the severance of an invalid restriction, and drew the court's attention to the date of execution, submitting that the 'old' forms were not materially different from the 'new' forms. The court accepted that the 'old' forms differed from the 'new' forms in an immaterial respect and were accordingly within paragraph 3(1) of Schedule 1 of the MCA, which provides that an instrument which differs in an immaterial respect in form or mode of expression from the prescribed form is to be treated by the Public Guardian as sufficient in point of form and expression. [OPG summary - LPA case.] 2012‑03‑05 19:04:11 2012 cases, Brief summary, Judgment does not exist, LPA cases - formalities, No transcript


Re Hurren (2011) COP 28/9/11 — The Public Guardian refused to register the instrument as an LPA because the Part B certificate had been signed before the donor signed Part A, in contravention of Regulation 9 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007. (The donor had subsequently lost capacity.) On the attorney's application, the court declared in the exercise of its discretion under paragraph 3(2) of Schedule 1 of the MCA 2005 that the instrument was to be treated as if it were in the prescribed form and directed registration. The Public Guardian applied to set aside the order on the ground that paragraph 3(2) did not apply in the case of defective execution. The court set aside the order, and confirmed that the discretion given to the court under paragraph 3(2) applies only to an instrument which is not in the prescribed form and does not apply to any prescribed requirements in connection with its execution. [OPG summary - LPA case.] 2011‑11‑14 19:39:02 2011 cases, Brief summary, Judgment does not exist, LPA cases - formalities, No transcript


Re Clarke (2011) COP 19/9/11 — The donor made an LPA for property and financial affairs, appointing her husband and daughter as attorneys and her other two daughters as replacement attorneys. She also made an LPA for health and welfare, appointing her husband and three daughters as attorneys. When an application was made to register the instruments, the husband objected on the ground that the instruments had not been properly witnessed. He alleged that the witness had not been in the house when the donor signed, but had added his signature later. The court preferred the evidence of the witness and one daughter, to the effect that the donor had signed at the dining room table and that the witness was in an adjacent room and could see her sign through glass doors separating the two rooms. Applying the old case Casson v Dade (1781), the court held that the instruments had been properly witnessed. (The husband also objected on the ground that the donor lacked capacity to make an LPA, but this was also dismissed. The donor's GP had acted as certificate provider and the court commented on the difficulties facing GPs who act as certificate providers within the time constraints of an appointment at the surgery). [OPG summary - LPA case.] 2011‑11‑14 19:29:17 2011 cases, Brief summary, Judgment available on MHLO, LPA cases - formalities, Neutral citation unknown or not applicable, Transcript


Re Putt (2011) COP 22/3/11 — (1) Two LLP partners were appointed attorneys; the certificate provider, as an associate at the same firm, was ineligible to act; (2) A direction that 'My attorneys (or any of them) may delegate in writing any of his, her or their functions to any person and shall not be responsible for the default of that person (even if the delegation was not strictly necessary or expedient) provided that he, she or they took reasonable care in his, her or their selection and supervision' was 'not simply contrary but almost repugnant to the special relationship of personal obligation and faith that one might reasonably expect to exist between a donor and the attorney of an LPA'. 2011‑05‑26 20:07:42 2011 cases, Brief summary, Judgment available on MHLO, LPA cases - formalities, LPA cases - substitute attorneys, Neutral citation unknown or not applicable, Transcript


Re Cretney (2011) COP 24/2/11 — The donor made an LPA on the "new" form prescribed in 2009 but omitted the attorney's date of birth in Part A. The Public Guardian refused to register on the ground that the instrument differed materially from the prescribed form. On the application of the attorney (who was over 18) the court declared in the exercise of its discretion under paragraph 3(2) of Schedule 1 of the MCA that the instrument was to be treated as if it were in the prescribed form. [OPG summary - LPA case.] 2011‑03‑18 19:15:21 2011 cases, Brief summary, Judgment does not exist, LPA cases - formalities, No transcript


Re Dadd (2010) COP 17/10/10 — The donor made an LPA using the "new" form presribed in 2009. She appointed two attorneys but provided no date of birth for either. The Public Guardian was willing to register in favour of one attorney because her title was given as "Mrs", so that it could reasonably be inferred that she was at least 18. It was overlooked that the other attorney was described in the instrument as the donor's husband. On the attorney's application the court directed registration. As it could be inferred from the instrument that both attorneys were at least 18, the instrument differed from the prescribed form in an immaterial respect within paragraph 3(1) of Schedule 1 of the MCA 2005. [OPG summary - LPA case.] 2011‑03‑18 19:13:24 2010 cases, Brief summary, Judgment does not exist, LPA cases - formalities, No transcript


Re Baker (2011) COP 4/2/11 — In Part A of the instrument the donor put his middle name in the box for "Last Name" and omitted his surname completely. As his middle name could have passed for a surname, this error was not noticed by anybody and the instrument was registered. The attorney applied for a declaration that the LPA was to be treated as valid under paragraph 3(2) of Schedule 1 of the MCA 2005, under which the court may declare that an instrument is to be treated as if it had been made in the prescribed form even though it differs in a material respect from the prescribed form. The court exercised its discretion under paragraph 3(2) because, although the error was material, it was satisfied that the instrument was intended to be an LPA. The Public Guardian was directed to amend the register and attach a note to the instrument to this effect. (Note: for a similar case concerning an EPA, see Re Orriss (2010) COP 20/10/10, under the "Rectification" heading.) [OPG summary - LPA case.] 2011‑03‑18 18:56:17 2011 cases, Brief summary, Judgment does not exist, LPA cases - formalities, No transcript


Re John (2010) COP 14/10/10 — The donor made an LPA using the "old" form prescribed in 2007. She appointed an original attorney and a replacement attorney, but the replacement attorney's Part C omitted his date of birth, and it could not be inferred from the instrument that he was at least 18. The usual practice of the Public Guardian in such a case is to request a fresh Part C, but this could not be done because the donor had lost capacity (see Re Sporne (2009) COP 13/10/09). The instrument was registered, with registration being limited to the original attorney, but the attorney then applied to court to have the defective Part C "reinstated". The Public Guardian was joined as a party. The court ruled that the LPA was not in the prescribed form because of the failure to include the replacement attorney's date of birth. As the court was satisfied on the evidence that the replacement attorney was in fact at least 18, it exercised its discretion under paragraph 3(2) of Schedule 1 of the MCA (which is set out in the summary of Re Nazran (2008) 27/6/08) to declare that the LPA was to be treated as if it were in the precribed form. (Note: in the case of LPAs made using the 2009 prescribed form, the attorney's date of birth must be included in Part A, so the practice of requesting a fresh Part C is not applicable, although limited registration may be possible if there is another attorney whose date of birth has been given.) [OPG summary - LPA case.] 2010‑10‑27 23:17:02 2010 cases, Brief summary, Judgment does not exist, LPA cases - formalities, No transcript


Re M Crook (2010) COP 16/7/10 — The donor's Health and Welfare LPA included an invalid restriction. A further defect was that she had not entered the date on which she executed Part A of the instrument in section 10, nor had she dated section 5 when selecting Option A. The Public Guardian does not regard a failure to execute the Options section as invalidating the instrument, but a failure to date Part A will normally do so. However, in this case the Public Guardian was prepared to infer that both sections had been executed on 13 October 2009, as Continuation Sheet A1 had been signed on that date, and so was the Part B certificate. In addition, the certificate provider had witnessed the Part A signatures. When applying for severance of the invalid restriction, the Public Guardian requested the court to direct that Part A was to be treated as having been signed on 13 October 2009, to avoid any challenges by third parties. The court accordingly included a provision in the order to the effect that sections 5 and 10 of Part A were to be treated as having been executed on 13 October 2009. [OPG summary - LPA case.] 2010‑09‑02 19:25:45 2010 cases, Brief summary, Judgment does not exist, LPA cases - formalities, No transcript


Re McAdam (2010) COP 29/3/10 — The donor had named X, one of two original attorneys (who had been appointed to act jointly and severally), as the only named person. On the application of the Public Guardian the court severed the appointment of X as attorney on the ground that the MCA does not permit an attorney to be a named person. The instrument was directed to be registered as an LPA appointing only the other attorney. (OPG summary - LPA case.) 2010‑04‑07 21:56:58 2010 cases, Brief summary, Judgment does not exist, LPA cases - formalities, No transcript


Re Bullock (2009) COP 15/12/09 — The certificate providers did not tick the box to confirm that they had discussed the LPA with the donor and that the attorney was not present. The donor was in hospital and the certificate providers had discussed the LPA with the donor at his bedside, the attorney being present throughout. The Public Guardian refused registration on the ground that the instrument was not in prescribed form. The court, in the exercise of its discretion, declared under paragraph 3(2) of Schedule 1 of the MCA 2005 that the instrument, which was not in the prescribed form, should be treated as if it were. Registration was directed accordingly. [OPG summary.] 2010‑01‑12 19:08:08 2009 cases, Brief summary, Judgment does not exist, LPA cases - formalities, No transcript


Re Helmsley (2009) COP 30/11/09 — The donor executed two instruments intended to be LPAs. In Part A of both instruments she omitted to tick the box to confirm that she gave her attorneys authority to act on her behalf in circumstances when she lacked capacity. The Public Guardian refused registration on the ground that the instruments were not in prescribed form. On the attorneys' application, the court exercised its discretion under paragraph 3(2) of Schedule 1 of the MCA 2005 and declared that the instruments, although not in prescribed form, were to be treated as if they were. Registration was directed accordingly. [OPG summary.] 2010‑01‑12 19:05:24 2009 cases, Brief summary, Judgment does not exist, LPA cases - formalities, No transcript


Re Kittle (2009) COP 1/12/09 — Regulation 8(3) of the LPA, EPA and PG Regulations 2007 sets out categories of persons who cannot act as certificate provider. Included in the list is "a family member" of the donor or of the attorney (or of the owner, director, manager or employee of any care home in which the donor is living when the instrument is executed). In this case the certificate provider was the donor's first cousin. The Public Guardian declined to register the instrument on the ground that a first cousin was a family member of the donor. The court ruled that a first cousin is not a family member, and so the LPA was valid. [OPG summary.] 2009‑12‑16 01:54:55 2009 cases, Brief summary, Judgment available on MHLO, LPA cases - formalities, Neutral citation unknown or not applicable, Transcript


Re Gibbs (2008) COP 9/9/08 — The certificate provider ticked the box to confirm that he had discussed the LPA with the donor and that the attorneys were not present, and also ticked the box to say that the LPA had been discussed with the donor in the presence of other persons, identified as the attorneys. The court directed that the LPA was valid (the certificate provider having confirmed by letter that he had interviewed the donor on her own as well as with the attorneys present). (OPG summary.) 2009‑11‑29 22:03:42 2008 cases, Brief summary, Judgment does not exist, LPA cases - formalities, No transcript


Re Howarth (2008) COP 28/7/08 — The donor had named the replacement attorney as the only person to be notified of an application to register. MCA Schedule 1 paragraph 2(3) provides that a person who is “appointed as donee under the instrument” may not be a named person. If there was no effective named person, the instrument could only be valid if it contained two Part B certificates, but it contained only one. On the application of the Public Guardian the court directed the severance of the appointment of the replacement attorney on the ground that a replacement attorney was a person “appointed as donee under the instrument” who could not, therefore, be a named person. As the appointment of the replacement attorney was severed, the named person was not an attorney and so the instrument could be registered. (OPG summary.) 2009‑11‑29 21:59:57 2008 cases, Brief summary, Judgment does not exist, LPA cases - formalities, No transcript


Re Sporne (2009) COP 13/10/09 — The instrument had two defects: (i) the certificate provider had failed to tick the first two mandatory boxes in Part B, and (ii) the attorney had executed Part C before the certificate provider had signed Part B, contrary to Regulation 9 of the LPA, EPA and PG Regulations 2007. The Public Guardian's normal practice in such a case is to request fresh Parts B and C, but the donor had lost capacity. The attorney applied to court for the determination of the validity of the instrument. The court order recorded that, while the court could have exercised its discretion under paragraph 3(2) of Schedule 1 of the MCA in respect of the defect in Part B of the instrument, it could not exercise any discretion to validate a significant procedural error in respect of the requirements for the completion and execution of Parts A, B and C. It further recorded that the errors could not now be rectified as the donor had lost capacity. The court, therefore, refused to direct registration of the instrument. [Paragraph 3(2) provides that the court may declare that an instrument which is not in the prescribed form may be treated as if it were, if it is satisfied that the persons executing the instrument intended it to create a lasting power of attorney]. [OPG summary - LPA case.] 2009‑11‑29 21:55:58 2009 cases, Brief summary, Judgment does not exist, LPA cases - formalities, No transcript


Re Ker (2009) COP 21/9/09 — The donor in Part A of the LPA form omitted to tick the box to confirm that he had chosen his certificate provider himself. The Public Guardian refused registration on the ground that the instrument was not in prescribed form. On the attorney's application, the court exercised its discretion under paragraph 3(2) of Schedule 1 to the MCA 2005 and declared that the instrument, although not in the prescribed form, was to be treated as if it were a lasting power of attorney. Registration was directed accordingly. (OPG summary.) 2009‑11‑29 21:52:07 2009 cases, Brief summary, Judgment does not exist, LPA cases - formalities, No transcript


Re Nazran (2008) 27/6/08 — The certificate provider had not completed the first two boxes in Part B of the instrument to confirm that he was acting independently of the donor, was not ineligible to provide a certificate, and was aged 18 or over. The attorneys applied to court for a declaration that the instrument was a valid LPA or, alternatively, that the instrument was to be treated as valid under MCA Schedule 1 paragraph 3(2). [Paragraph 3(2) provides that the court may declare that an instrument which is not in the prescribed form may be treated as if it were, if it is satisfied that the persons executing the instrument intended it to create a lasting power of attorney]. The court, in the exercise of its discretion under Schedule 1 paragraph 3(2), declared that the instrument was to be treated as if it were an LPA and registered accordingly. The Public Guardian does not have this discretion. (OPG summary.) 2009‑11‑29 21:50:24 2008 cases, Brief summary, Judgment does not exist, LPA cases - formalities, No transcript


Re Murdoch (2009) COP 30/10/09 — The donor executed an instrument intended to be a personal welfare LPA. It contained the following defects: (i) the certificate provider had failed to tick the first two mandatory boxes in Part B, (ii) the attorney had failed to tick any of the boxes in Part C, although he had dated and executed it, and (iii) the replacement attorney had ticked the appropriate boxes in his Part C but had not dated or executed it. The Public Guardian refused to register the instrument, and the donor subsequently lost capacity. On the attorney's application, the court directed the Public Guardian not to register the instrument, because "the errors in its execution are too fundamental". 2009‑11‑09 21:15:51 2009 cases, Brief summary, Judgment does not exist, LPA cases - formalities, No transcript


Retrieved from "https://www.mentalhealthlaw.co.uk/index.php?title=Category:LPA_cases_-_formalities&oldid=51249"