Capacity to make a Lasting Power of Attorney

The capacity of a donor of an LPA was considered recently in The Public Guardian v RI & Ors [2022] EWCOP 22 as the judge in the case had to examine whether or not the donor had the requisite capacity to execute the LPA back in 2009.

The donor, RD, is a 60 year-old man with a learning disability and chronic schizophrenia. RD is subject to deprivation of liberty restrictions which means he cannot leave his care home without supervision. RD executed the LPA to appoint his brothers and mother as his attorneys. The LPA then authorised the attorneys to make decisions about RD in the event that he could no longer do this for himself.

10 years later, RD’s care home manager became concerned about the attorneys’ management of RD’s financial affairs and so passed on these concerns to the Office of Public Guardian (the ‘OPG’). The OPG is responsible for investigating such situations and in this case, the consultant found that it was ‘most likely’ that RD did not have capacity to execute the LPA.

Our Court of Protection team have summarised the findings below to help you ensure that you are aware of what needs to be considered if you, or a loved one, are considering making an LPA.

In order to execute an LPA the donor must understand:

1. The effect of the LPA
2. Who the proposed attorneys are
3. The scope of the attorneys’ powers and restrictions on these
4. When an attorney can exercise their powers
5. The scope of the assets the attorneys can deal with
6. The ability to revoke the LPA (as long as the donor has capacity to do so)
7. The pros and cons of executing the LPA, and on the contrary, not executing the LPA

When considering past capacity evidence is crucial. The court like to be able to hear:

1. The certificate provider’s experience
2. Evidence from family/friends/carers who were involved with the individual at the time. It may also be useful to hear any changes in capacity over time
3. Evidence from the relevant date in the form of capacity assessments, benefit assessments, medical evidence or any other professional evidence
4. An assessment of the individual’s current capacity by a qualified professional and their opinion on the individual’s capacity at the time of execution (informed by evidence from the relevant date)

In this case, the judge found that the donor did not have capacity as the certificate provider had not mentioned RD’s disability and it appeared they had no experience of dealing with donors with a disability. This shows then that when making LPAs for those with learning difficulties, care needs to be taken to ensure the certificate provider has experience in providing such assessments on individuals with that learning difficulty. This will help to avoid any questions about capacity later down the line.

For RD, the judge directed the OPG to cancel the registration of the LPA. The three appointed attorneys, were not aware that the donor had lacked capacity and so they were not held liable.

If you have any questions about anything in this article or would like assistance in drafting an LPA, our Court of Protection team are happy to help.

For more information call our Court of Protection team to discuss your options on 0344 326 0049 or email COPHalifax@ramsdens.co.uk to book a free information session at any of our offices.