Court of Protection issues new advice for individuals drafting LPA's

The Court of Protection has made decisions on two recent bulk cases which have been brought forward by the Office of the Public Guardian.

The office of the Public Guardian brought the cases to the Court of Protection as test cases so that useful guidance and greater clarity could be provided by the Court of Protection to people who make their own Lasting Powers of Attorney.

The first set of bulk cases offers guidance about what provisions may be included in a Lasting Power of Attorney (LPA) for health and care decisions in relation to wishes around euthanasia and assisted suicide. The topic of euthanasia and assisted suicide has been a contentious talking point for many years with people sharing a wide range of views on the issue.

The Court of Protection Judge, Lord Justice Baker, decided that an instruction or preference specified in an LPA for health and care decisions for the attorney to do something to end the person’s life or assist in the process was ineffective because that would lead to the attorney acting unlawfully. Lord Justice Baker also went on to clarify that where an instruction or a preference is expressed to be conditional on a change in the law, the provision will be ineffective. The reason for this is that there can be no way of predicting how future changes in the law will come about. As such, registering such provisions would lead to uncertainty and confusion in the LPA.

Lord Justice Baker went on to review a further 7 example cases, outlining the reasons why the included restrictions were ineffective and unlawful. His conclusion was the same in all cases.

The second set of bulk cases related to the appointment of multiple attorneys. In many cases people will appoint more than one attorney, this usually recommended, as it will ensure that a person still has an appointed attorney should something happen to the first person that they have chosen. When there is more than one attorney, they can be appointed jointly or jointly and severally or jointly in respect of some matters and severally in respect of others. However, many people who have created their own LPA have made attempts to structure their LPA differently.

The Court of Protection ruled that the provisions for the appointment of multiple attorneys under section 10(4) of the Mental Capacity Act 2005 were exhaustive and any appointment on a different basis would fail.

In the first case to be reviewed, the person had made an LPA appointing their attorneys jointly and severally. This meant that the attorneys could make decisions together or on their own. The person included a restriction that stated, ”If my spouse is capable of acting, my attorneys other than my spouse shall not act in any manner unless my spouse is unable to act on their own in that matter.” Lord Justice Baker explained that the restriction expressly went against the principles of a joint and several appointment. As such, the Court of Protection agreed that the provision should be severed (removed) from the LPA.

When drafting an LPA, there are many issues that can arise. It is therefore important that you obtain legal advice when drafting the documents. Otherwise, you can face the risk of the documents being rejected by the Office of the Public Guardian.

Throughout the LPA documents, they have the following symbol : 

The symbol indicates that you should consider seeking legal advice on certain parts of an LPA.

If you require assistance in drafting your LPA, then please do not hesitate to contact our team.

This article was written by Peter Taylor who is a Solicitor in our Private Client department.