By Clare Fuller, 9th August 2021
Update: The judgment on this case was handed down on 29th October 2021. You can read it here: https://www.bailii.org/ew/cases/EWCOP/2021/57.html
On 3rd August 2021 I was pleased to have the opportunity to observe a case focussing on decision-making involving people with Lasting Power of Attorney.
I’m a Lasting Power of Attorney Consultant. I help people to draft their Lasting Powers of Attorney – so learning more about how this issue is dealt with in the Court of Protection is really helpful.
In this case, the protected party (P) has dementia and is living in a care home in another country. Nearly 7 years ago, shortly after receiving her dementia diagnosis, she made two Lasting Powers of Attorney – one for property and affairs, the other for health and welfare. In both of them, she appointed her cousin, “AB” and one other person as attorneys. P’s nominated attorney, AB, is the applicant in this case. She wants to bring P back home to the UK.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document that lets you appoint one or more people to make decisions on your behalf. This gives you more control over what happens to you if you have an accident or an illness and cannot make your own decisions. The formal requirements, scope and applicability of LPAs are set out in Sections 9-14 of the Mental Capacity Act 2005.
The Office of the Public Guardian campaign shows that 72% of people think your next of kin always gets the final say in treatment decisions at hospital but this is not the case. The only way to ensure that a spouse, or adult children, or anyone else you trust, can make decisions for you is to appoint them as your Attorney.
A Lasting Power of Attorney can only be made when you are deemed to have the mental capacity to make the decision to appoint attorneys. The form requires evidence from a ‘certificate provider’ who must confirm that you’re making the LPA by choice and that you understand what you are doing.
There are two different kinds of LPA. A Health and Welfare LPA would be used if you lost capacity to make decisions about issues relating to health (e.g. whether you should have surgery or other medical treatments). An important element of the Health and Welfare LPA is that it offers the opportunity to give the person or people appointed, (the attorney(s)), authority to make life-sustaining treatment decisions.
A Property and Finance LPA is used for to appoint someone to make decisions about your money – and can take effect, with your consent, as soon as it is registered.
Despite the widespread campaign to raise awareness, LPAs remain little known or understood.
My interest in LPAs, and the reason I became a Lasting Power of Attorney Consultant, stems from a long career as a nurse in palliative and end of life care, where I witnessed the impact of not having these important documents in place. I feel incredibly passionate about people’s voices; their choices and their values being heard – and LPAs are an important way of enabling this. I advocate for proactive Advance Care Planning and LPAs are one important element of planning ahead.
The hearing I attended (Case no. COP 13785356) was held via MS Teams before Mrs Justice Lieven on 3rd August 2021.
The applicant is AB, who holds LPAs (both for Health and Welfare and for Property and Finance for her cousin P. There is a second person also appointed as LPA for P who fully supports AB’s application. It was confirmed in court that the LPAs were signed by P on 11th September 2014 and registered by the Office of the Public Guardian on 2nd December 2014.
Since making the LPAs, P has lost capacity to make her own decisions about where to live, and, in alignment with her wishes, her cousin is now enabled through the LPA to make decisions on P’s behalf.
In 2013, P, who had lived in the UK for about 40 years, was diagnosed with dementia and she moved into a care home the following year.
Shortly afterwards she travelled to Lebanon to live with her brother for what was intended to be a trial period. She enjoyed living there, was well cared for, and decided to stay.
After her brother died unexpectedly a couple of years later, she moved into a care home in Beirut.
The applicant, AB (represented by Parishil Patel) is “very worried” about P’s welfare in Beirut. Nobody visits P at the care home, and there is growing political and economic tension and instability in Lebanon which is having a real effect on P’s care. There is a shortage of medications – the other attorney has been arranging for these to be supplied to P from outside Lebanon.
Last year AB tried to use the Lebanese court system to get P back to the UK and obtained a Return to UK Order, but this was blocked by P’s nephews. AB had medical evidence that P was fit to travel: she had found a place for P at a private care home near to where she lived, and she had made travel arrangements with an expert medical repatriation charter company. But before this plan could be carried out, P’s two nephews obtained a Travel Ban order – on the basis that P’s return to the UK “would cause [one nephew] damage in respect of the prosecution of his [wardship] suit” and that “travelling to Britain in her poor state of health and at her advanced age could cause grave damage to her health [and] there is the danger of her catching the coronavirus”. It is unclear what the two nephews’ motives for keeping P in Lebanon are (they don’t visit her or provide care) but there is speculation that there may be financial motives.
AB wants the court to use the inherent jurisdiction to relocate P back to the UK “as soon as suitable travel arrangements can be made”. She also seeks an order that the LPAs are valid.
Mrs Justice Lieven acknowledged the challenges of the case – especially the interfamily dispute – as well as the need for expedited decision making since P is elderly and frail.
The inherent jurisdiction
The High Court has the power to protect vulnerable adults, including British citizens in foreign jurisdictions. (See Holman J’s decision in Al-Jeffery v Al-Jeffery (Vulnerable adult; British citizen)  EWHC 2151 (Fam) – widely reported in the media, including this BBC report and the follow-up to the story the following year.) As the case before Holman J illustrates, the court can order relocating a person to the UK. According to counsel for AB, P is a vulnerable adult in a foreign jurisdiction in need of this protection, in the form of relocation. Her current situation is “extremely concerning” and she is “at risk of harm”.
Validity of the LPAs
Early on in the hearing, the judge asked for evidence that the LPAs were valid documents. Evidence was provided that they had been registered with the Office of the Public Guardian.
She asked “what evidence do I have that P had capacity when she filled these in?” and was referred to the affidavit of a Consultant Psychiatrist who saw P shortly before she signed the LPAs and found her “clear and coherent” in explaining what she wanted to do in appointing LPAs, and she was able to articulate the purpose of LPA, and why she had chosen her nominated attorneys. The solicitor who helped P draw up the LPA documents had written a letter for the court saying that there was no suggestion of undue pressure being applied, i.e. P was making the LPAs of her own free will.
Mrs Justice Lieven agreed to make an order that the LPAs were valid and applicable in this case.
It was agreed a further hearing would be necessary to clarify what should happen next – including appointing the Official Solicitor to represent P, assessing P’s fitness to travel, and considering the practicalities of relocating P if it turns out to be in her best interests.
A tentative date for the next hearing (a full day) has been set for 1st September 2021.
Hearing a judge scrutinise the validity of an LPA highlights to me the crucial importance of ensuring careful attention to record keeping and evidence of a donor’s capacity when making an LPA. In this case, the attention to detail of both the solicitor and psychiatrist in 2014 ensured that there was no challenge to the validity of the LPA, and P’s nominated attorneys are able to act for her, as she wished. I hope to be able to observe the next hearing in this case, and will report back on how the LPAs’ decision-making plays out in court.
I have watched Court of Protection hearings before. Back in August 2020, I bore witness to an intensely complex MCA and best interests hearing concerning a young lady with anorexia. That experience brought home to me the huge educational value of observing hearings and seeing how judges make these important decisions.
Over the course of the subsequent year, I have promoted the Open Justice Court of Protection Project as an excellent avenue for health care professionals to see the application of MCA decision-making in practice. As an advocate for proactive Advance Care Planning and a Lasting Power of Attorney Consultant it has been hugely beneficial for me to see how a judge goes about assessing the validity of an LPA and making decisions about P when she has appointed her own nominated attorneys. Observing hearings in the Court of Protection is an excellent learning experience which continues to benefit my own practice.
Clare Fuller RGN MSc is a registered nurse with a career dedicated to Palliative and End of Life Care. She is an advocate for proactive Advance Care Planning and delivers bespoke EoLC education. She is also a Lasting Power of Attorney Consultant and director of Speak for Me LPA Clare tweets @ClareFuller17