Keywords: LPA, public guardian, legal effect

This case makes clear that the powers of the Public Guardian in relation to registering Lasting Powers of Attorney (LPAs) are limited to declining to register LPAs containing provisions which cannot actually be given legal effect and cannot be used to exclude LPAs which are merely likely to be of limited practical usefulness.

MCA 2005 Schedule 1 part 2 paragraph 11(2) permits the Public Guardian to refuse to register an LPA (and instead refer to the Court of Protection for a determination under s.23) where it contains a provision which “would be ineffective”. The judgement defines “effective” in this section as being limited to the legal efficacy of a provision. So, for example, a provision which purported to permit an attorney to vote in public election on behalf of the donor (contrary to s.29) would be legally ineffective because the provision could not lawfully be given effect.

In this case, the donor (Z) wished to place complex restrictions and limitations on his attorneys. His intent was to ensure that he could not be judged to lack capacity without robust and sustained evidence: undisputed psychiatric opinions subject to review by his close friend and the passage of a period of 60 days. Additionally he wished to limit the scope of the attorneys’ powers to emergency actions in situations of a temporary loss of capacity.

The Public Guardian argued that the restrictions so limited the usefulness of the LPA as to make it ineffective. However it was held that practical difficulties in using an LPA, such as attorneys having to  prove that the donor does not have mental capacity each time they try to use the LPA, are not sufficient to make an LPA “ineffective” within the meaning of Schedule 1 part 2 paragraph 11(2). The Public Guardian does not have the power to override the wishes and judgement of the donor and impose its own view of the wisdom or usefulness of the proposed provisions.

The Public Guardian has a duty to apply to the court under s.23(1) for a determination of the meaning or effect of an LPA where the Public Guardian takes the view that proposed provisions in the LPA cannot be given legal effect. However, in this case the Public Guardian had not identified any conflict between the provisions of Z’s proposed LPA and any specific provision of the Mental Capacity Act. Therefore the Public Guardian was under a duty to register the LPA.

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