Text:ICLR [2018] WLR(D) 608
The WLR Daily case summaries
Public Guardian v DA and others
2018 May 9; Sept 13; Oct 5
Baker LJMental disorder— Lasting powers of attorney— Validity— Validity of words used in lasting powers of attorney— Whether words directing attorney to bring about donor’s death effective— Whether appointment of multiple attorneys in LPAs valid— Mental Capacity Act 2005 (c 9), ss 9(2)(a)(3), 10, 11(7)(c)(8), 23, Sch 1, para 11
In two series of test cases the applicant sought, under section 23 of and paragraph 11 of Schedule 1 to the Mental Capacity Act 2005, determinations as to the validity of words used in lasting powers of attorney (“LPAs”) relating (i) to euthanasia or assisted suicide and (ii) the appointment of multiple attorneys, and whether it was appropriate to register the LPAs as drawn, with amendments, or whether the instrument should not be registered at all. The parties were agreed that the effect of section 11(7)(c) and (8) of the 2005 Act was to permit an LPA to include an express provision authorising an attorney to give or refuse consent to the carrying out or continuation of life-sustaining treatment, subject to any conditions or restrictions. Further, there was a substantial measure of agreement, inter alia, that: (a) if an LPA contained an instruction requiring the attorney to act in a manner that was inconsistent with the 2005 Act or the general law, it would generally be ineffective as part of the LPA; (b) if the words used in a “preference” were purely precatory, then that expression of a wish could not prevent the instrument from operating as a valid LPA, even if the wish were not capable of being given effect within the confines of the attorneys’ current powers; (c) equally, words in “preferences” should not be considered to be “ineffective as part of an LPA” if they were capable of providing assistance to the attorneys as to how they should seek to exercise their powers, notwithstanding that the expressed wishes went beyond what the attorneys were permitted to do under the LPA; and (d) an attorney could not use an LPA as a basis for carrying out an illegal act so that a “preference” such as an instruction to end a donor’s life, or to assist in that process, which would on its face be a criminal offence should generally be treated as ineffective as part of an LPA.
On the applications—
Held, applications granted. (1) An instruction or preference in an LPA directing or expressing a wish that an attorney should take steps to bring about the donor’s death was instructing or encouraging someone to commit an unlawful act and therefore ineffective. In order to ensure that the donor’s autonomy was fully respected an instruction was a direction in mandatory terms wherever it appeared on the form. Thus a stipulation in the “preferences” box that was clearly mandatory should be interpreted as an instruction; equally, a provision in the “instructions” box might be couched in terms that made it clear that it was intended to be a preference. Instructions and preferences predicated on a change in the law were ineffective. The ways in which the law could be changed in this field were so many and varied that permitting an LPA to be registered when containing an instruction or preference as to the attorney’s actions should the law change would lead to uncertainty and confusion. In those circumstances the right course was to declare all such provisions, whether instructions or preferences, ineffective. In each of the first series of test cases the donor had included in the LPA either an instruction or a preference that the attorney should make the necessary arrangements which would bring about death. As a result all of the provisions in those cases were ineffective and should be severed (paras 27–29, 42).
(2) The second series of cases concerned the appointment of attorneys in terms which were said to be inconsistent with the statutory provisions about such appointments. The relevant statutory provisions were set out in section 10 of the 2005 Act and in particular subsections (3) to (5). The three options provided for in section 10(4) were exhaustive and if an instrument purported to appoint the attorneys to act on a different basis to those prescribed by the subsection then it did not comply with section 10. Consequently, under section 9(2)(a), no LPA was created and, under section 9(3), the instrument conferred no authority at all. It followed that where the appointment of the attorneys was, under section 10(4)(c), to act jointly in respect of some matters and jointly and severally in respect of others, it was essential that the donor identified the decisions that were to be taken jointly. Under section 10(5), a failure to do so would lead to an assumption that the attorneys were appointed act jointly. Since the court was required to construe the 2005 Act in a way which gave as much flexibility as possible to donors to set out how they wished their affairs to be dealt with the wording of the instrument was more important than the boxes in which the wording appeared. In the absence of evidence to the contrary, where there was an internal inconsistency in an LPA between the way in which the donor had ticked the box in section 3 of the form and the detailed instructions contained in section 7, it was the latter which should take precedence. Since there was nothing in the 2005 Act to prevent the donor imposing all kinds of restrictions upon the exercise of the attorney’s powers there was nothing inherently objectionable where an LPA required the attorney to obtain the consent of a third party before acting. Such restrictions were consistent with the underlying principle that respect must be given wherever possible to the donor’s autonomy (paras 43, 44, 45, 47).
Dicta of Nugee J in Miles v Public Guardian [2015] COPLR 676, para 19, Ct of Protection considered.
Thomas Entwistle (instructed by Public Guardian) for the Public Guardian.
David Rees QC (instructed by Official Solicitor ) as advocate to the court.
The respondents did not appear and were not represented.
Reported by: Jeanette Burn, Barrister