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September 2011 update

Case law - LPAs

  • Re Gee (2011) COP 22/8/11 — The donor of a property and affairs LPA included the following guidance: "Although I authorise my Attorneys to make gifts of money to either grandchild in cases of extreme need (for which I rely on my Attorneys' discretion) no benefit directly or indirectly should go to my daughter. If my house has to be sold I authorise my Attorneys to distribute any furniture, household and personal effects to X, Y and my grandchildren as if I had died." In making the application the Public Guardian referred the court to the view expressed by the Law Commission in its report on Mental Capacity (Law Com. No. 231) to the effect that an LPA attorney could provide for the needs of others as part of his duty to act in the donor's best interests, even in the absence of an express provision such as is conferred on EPA attorneys. The Public Guardian asked the court to consider whether the view of the Law Commission could be relied on in cases where the donor contemplated that the attorneys could provide for the needs of others in circumstances outside the statutory gifting power. However, the court severed the guidance on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.]§
  • Re Temple (2011) COP 10/8/11 — The donor of a property and affairs LPA included the following guidance: "My attorney is authorised to grant gifts of up to £5,000 for family and also to provide interest free loans of up to £10,000 for extreme need. Where possible loans to be repaid within one year with flexibility of terms allowed at my attorney's discretion." On the application of the Public Guardian the guidance was severed because it contravened section 12 of the MCA 2005. [OPG summary - LPA case.]§
  • Re Jackson (2011) COP 17/8/11 — The donor of a property and affairs LPA included the following guidance: "If my attorneys believe I lack mental capacity or am becoming mentally incapable of managing and administering my property and financial affairs then I wish them to realise all my stocks, shares and other investments and transfer the proceeds and the balances from all bank and other accounts in my sole name into a joint account in the names of myself and my wife to ensure that my wife has full access to all funds." On the application of the Public Guardian the guidance was severed because it contravened section 12 of the MCA 2005. [OPG summary - LPA case.]§
  • Re Fisher (2011) COP 28/7/11 — The donor included the following provision in his LPA: "I direct that if I lack mental capacity or for any other reason am unable to deal with my day to day financial affairs then my Attorney is to pay from my business the sum of £4,000 per calendar month into the bank account of my wife." On the application of the Public Guardian the provision was severed on the ground it contravened section 12 of the MCA 2005. [OPG summary - LPA case.]§
  • Re Walker (2011) COP 20/7/11 — The donor of a property and affairs LPA included the following provision in the guidance section: "To help my son X financially from my funds as and when he requires." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.]§
  • Re Salter (2011) COP 18/8/11 — The donor appointed primary attorneys to act jointly in some matters and jointly and severally in others, and also appointed replacement attorneys. She then directed as follows: "For decisions where my attorneys must act jointly, replacement attorney 1 should replace attorney 1, when he is unable to act and replacement attorney 2 should replace attorney 2 when he is unable to act." On the application of the Public Guardian this provision was severed because the effect of one primary attorney ceasing to act would be that the other primary attorney could no longer act in the matters to be decided jointly, but the direction contemplated that the first replacement would act with the surviving primary attorney. [OPG summary - LPA case.]§
  • Re Druce (2011) COP 31/5/11 — The donor made LPAs appointing A and B as her attorneys, to act jointly, and C and D to be her replacement attorneys. She then imposed the following restriction: "Both C and D should jointly replace the first attorney who needs replacing so that on the first replacement there will be 3 acting attorneys. No further replacements will be needed." On the application of the Public Guardian the court severed the restriction. There is nothing in section 10(8)(b) of the MCA, which deals with the appointment of replacement attorneys, to displace the fundamental principle that the survivor of joint attorneys cannot act. Where one of the original joint attorneys can no longer act, the replacement(s) will step in and act alone, to the exclusion of the surviving original attorney. This ruling reflects what is stated to be the "better view" in paragraph 4.44 of Cretney and Lush on Lasting and Enduring Powers of Attorney (6th edition). [OPG summary - LPA case.]§
  • Re Brindley (2011) COP 11/5/11 — The donor appointed three attorneys, A, B and C, to act jointly and severally. She then imposed the following restriction: "C does not attain the age of 18 until 21.12.2012 upon which date along with A and B she will act jointly and severally as attorney." On the application of the Public Guardian the appointment of C was severed as invalid on the basis that it contravened section 10(1)(a) of the MCA. [OPG summary - LPA case.]§
  • Re Ingham (2011) COP 15/8/11 — The donor appointed four attorneys to act jointly for some decisions and jointly and severally for others. She then directed as follows: "A. While all attorneys are acting: 1. All may complete any transaction with a value not exceeding £2,500. 2. All must complete any transaction with a value exceeding £2,500. B. In the event that only two or three Attorneys remain capable of acting those Attorneys are bound by A1 and 2 above. C. In the event that only one Attorney remains capable of acting that Attorney has full powers to complete transactions of any value." On the application of the Public Guardian directions B and C were severed on the ground that they were incompatible with the joint aspect of the appointment: if one attorney ceased to act, the matters to be decided jointly would not be able to be decided by the continuing attorneys. [OPG summary - LPA case.]§
  • Re Freeman (2011) COP 17/8/11 — The donor appointed A and B as attorneys to act jointly in some matters and jointly and severally in others. He specified that they were to act as follows: "Major capital expenses jointly. Day to day expenses A." In his application the Public Guardian submitted that the donor had not specified any decisions to be made jointly and severally and so the words "Day to day expenses A" should be severed, with the effect that decisions not specified to be taken jointly should by implication be taken jointly and severally. The court was also asked to sever the word "Major" on the ground of uncertainty. The court accordingly severed these words so that the attorneys were appointed to act jointly for "capital expenses" and (by implication) jointly and severally for everything else. [OPG summary - LPA case.]§
  • Re Pugh (2011) COP 13/7/11 — The donor appointed three replacement attorneys to act jointly. She then completed the box on page 5 of the form (which should be completed only if the attorneys are to act jointly in some matters and jointly and severally in others) and directed as follows: "Where by this power I have appointed three replacement attorneys to act jointly on all occasions then I direct that if there is a dispute it is the majority decision of my three replacement attorneys that is to be followed and in the event that by reason of death or incapacity or other reason I only have two of my three replacement attorneys who are capable of acting then in the event of a dispute between my two continuing replacement attorneys it is the decision of the eldest that is to be followed." On the application of the Public Guardian the court severed the restriction as being incompatible with a joint appointment. [OPG summary - LPA case.]§
  • Re Wheeler (2011) COP 25/7/11 — The Public Guardian applied for the severance of an invalid clause in the LPA. The Senior Judge considered that another clause was also invalid, which was severed on the court's own initiative. The donor had provided the following guidance: "My attorneys may act on the contents of my will." The court's reason for severing the guidance was as follows: "The court considers that the meaning of this guidance is unclear and that it is probably void for uncertainty. Potentially it authorises the attorneys to distribute the donor's estate during his lifetime as if he were dead, which would be not only contrary to public policy but also contrary to the provisions of section 12 of the Mental Capacity Act 2005. A will speaks from death, and it is not a function of an attorney to act as the executor of the donor's will." [OPG summary - LPA case.]§
  • Re Hodgkiss (2011) COP 25/8/11 — The donor of a Health and Welfare LPA selected Option B, which states that the attorneys have no authority to give or refuse life-sustaining treatment. He then directed as follows: "Attorneys must consent to any life sustaining treatment if I am in a persistent vegetative state." On the application of the Public Guardian this provision was severed as being incompatible with his selection of Option B. The court added that, if the donor had wished to give his attorneys authority to consent to life-sustaining treatment if he were in a persistent vegetative state, he should have selected Option A. [OPG summary - LPA case.]§
  • Re Gardner (2011) COP 6/7/11 — The 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.]§

Case law - other

  • Re M; W v M [2011] EWHC 2443 (COP) — M is in a minimally-conscious state (the three categories of disorders of consciousness being coma, vegetative state and minimally-conscious state); family members applied to court to argue that the withdrawal of artificial nutrition and hydration was in M's best interests. (1) The Official Solicitor's argument that withdrawal can never be in the best interests of a clinically-stable MCS patient was rejected in favour of the usual 'balance sheet' approach to best interests, although clinical stability is an important factor. (2) In analysing best interests, the judge considered (a) preservation of life, (b) M's past wishes and feelings, (c) pain, (d) enjoyment of life, (e) prospects of recovery, (f) dignity, and (g) wishes and feelings of family members and carers. (3) It was not in M's best interests for ANH to be withdrawn: the preservation of life was the decisive factor in this case. (4) The judge made the following observations for future cases: (a) a decision to withhold or withdraw ANH from a person in VS or MCS must be referred to the court; (b) no such application should be made unless the necessary assessments for MCS have been carried out; (c) non-means-tested Legal Aid should be available for family members in such applications; (d) consistent with privacy, it is imperative that the press should be free to report such cases. (5) A radical review of M's care plan will be the subject of further submissions; in the meantime, the do-not-resusitate order was continued and other treatment left to clinical discretion.§
  • R (Sunderland City Council) v South Tyneside Council [2011] EWHC 2355 (Admin) — SF moved from a residential college in Sunderland (ESPA) to a hospital in South Tyneside (Rose Lodge), initially informally then under section 3; the placement in Sunderland was terminated because of the hospital stay. The judge drew 10 propositions from the law, and concluded that Sunderland remained the authority with aftercare responsibility under s117. Relevant considerations were that (a) the informal admission was close to being involuntary (through force of circumstances) and was in what was intended to be short-term accommodation, (b) the termination of the Sunderland placement was not voluntary, and (c) the Tyneside placement was not part of SF's regular order of life or for a settled purpose. [Caution: overturned on appeal.]§
  • DN v Northumberland Tyne and Wear NHS Foundation Trust [2011] UKUT 327 (AAC) — It was argued before the FTT that DN should be discharged, deferred until arrangements under the MCA DOLS could be put in place in relation to residence and control of his alcohol consumption. (1) When the MHA applies, it has primacy over the MCA; however, if the MCA were applied in anticipation of discharge from detention then DN would NOT then be 'within the scope' of the MHA and therefore not ineligible for MCA DOLS. (2) The FTT erred in law by failing, when deciding not to discharge, to address the possibility of supervision under the MCA. (3) The Trust had not participated in the appeal so the UT erred on the side of caution by setting aside and directing a rehearing.§
  • R (O) v LB Hammersmith and Fulham [2011] EWCA Civ 925 — Dispute over accommodation for child in need.§

Legislation

Other documents

  • Office of Fair Trading, 'Mental capacity - OFT guidance for creditors' (September 2011, ref OFT1373). The guidance contains the following chapters: (1) Introduction; (2) Mental capacity and its relevance to a borrowing/lending decision; (3) Indicators that borrowers have, or may have, mental capacity limitations; (4) Practices and procedures; (5) Regulatory compliance and enforcement. The annexes are: (A) Useful contacts; (B) Powers of Attorney and Deputyship; (C) Other relevent guidance and legislation. See Office of Fair Trading
  • Text of MCA Update email of 7/9/11 added. This relates to the new OPG fees. See MCA Update emails
  • Links to various articles about Albert Haines's public Mental Health Tribunal hearing added. See AH v West London MH NHS Trust [2011] UKUT 74 (AAC)
  • From 3/10/11 the following Legal Aid forms change (not all are directly related to mental health law): Means1; Means1 'The guide' and CLSCK3; Means7; CLAIM1, 1A, 2, 5, 5A; CLAIM1 & CLAIM2 checklists; CW1; ECClaim 1 (IMM) and (MH); TFF. See Legal Aid News

Scotland and Wales

  • Scottish Government, 'Multi-Agency Public Protection Arrangements (MAPPA) Annual Report 2010/11' (9/9/11). See MAPPA
  • Text of various circular emails about new Welsh legislation added. See Mental Health (Wales) Measure 2010

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