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.]
MHLO summary
(Written before OPG summary was noticed.)
Mr Clarke objected to the registration of Mrs Clarke's LPAs on the grounds that she lacked capacity at the time of signing and that the witness did not see her sign the instrument. (1) Mrs Clarke did not lack capacity at the time. (2) She and the witness did not have to be in the same room as long as there was line of sight through a window (which there was). (3) The application was disingenuous so the usual costs rule (that his wife would pay his costs) was departed from.
Note
Summary from OPG section of Justice website.
Title: Re Clarke (an order of the Senior Judge made on 19 September 2011)
Heading: Whether the instrument has been correctly executed
External link
No Bailii link (neutral citation is unknown or not applicable)
Summary on OPG section of Justice website . This is a link to an archived version of the web page (archived on 6/10/14).
MOJ website: 'Other orders of interest made by the Court of Protection since 1 October 2007' page