Capacity to make a Lasting Power of Attorney

By Clare Fuller, 3rd May 2022

I wanted to observe this hearing because it was listed as being concerned with the validity of a Lasting Power of Attorney.

Here’s how it appeared in the Court of Protection list for First Avenue House in London:

Midday
20thApril 2022
Deputy District Judge Kaufman13628180 CC -v- The Public Guardian and NRC, Directions, LPA ValidityDirections1 hourRemote
Daily Cause List, First Avenue House

This is an area I work in as a Lasting Power of Attorney Consultant and advocate for Advance Care Planning.  It’s important to me because I believe in the value of a Lasting Power of Attorney in Advance Care Planning and have seen first-hand the challenges when this is not in place.

What is a Lasting Power of Attorney?

Lasting Power of Attorney is a legal document that enables someone to nominate a person or persons to act for them if they ever lose the capacity to make decisions for themselves. 

The person making the Lasting Power of Attorney is referred to as the donor. The person (or persons) appointed to act for them are called attorneys. 

Capacity to make decisions can be lost through a deteriorating long term health condition or a sudden accident or illness. 

Making a Lasting Power of Attorney can be recognised as part of normal life planning.

When a Lasting Power of Attorney is drafted there are key decisions to be made, important information to be included and safeguards maintained; one of these is ensuring that the donor has capacity to make the Lasting Power of Attorney.  

The Office of the Public Guardian publishes resources to help people to understand how mental capacity to make a Lasting Power of Attorney is assessed (see  LP12 Make and register your lasting power of attorney).

Assessing mental capacity.
To work out whether someone lacks the mental capacity to make a decision, you need to answer ‘yes’ to these two questions:Do they have a mental or brain problem that stops their brain or mind from working properly?Is that problem causing them such difficulty now that they are unable to make this particular decision at the time it needs to be made?Being ‘unable to make this particular decision’ means that the person can’t:understand relevant information about the decision that needs makingkeep that information in their mind long enough to make the decisionweigh up the information in order to make the decisioncommunicate their decision – this could be by talking, using sign language, pictures or even just squeezing a hand or blinking
LP12 Make and register your lasting power of attorney: a guide

The Office of the Public Guardian supports the Public Guardian in carrying out the legal functions of the Mental Capacity Act 2005 .  

Within the Mental Capacity Act 2005, section 9(2)(c) makes explicit that a person must have capacity to execute a Lasting Power of Attorney and section 9(3) says that An instrument which purports to create a lasting power of attorney, but does not comply with this (and other requirements) confers no authority.

The question of a person’s capacity (or otherwise) at the point when he executed his Lasting Powers of Attorney was the matter at issue in the hearing before Deputy District Judge Kaufman.  The Public Guardian was represented by Elizabeth Calladine, and the father of the young man who’d made the Lasting Powers of Attorney was in court as a litigant in person. 

The hearing

As is commonly the case in the Court of Protection, with its clear commitment to open justice, the judge asked the applicant solicitor (Elizabeth Calladine) to “set out a brief background to the case for the benefit of [the observers]

A man in his 30s (P) executed two Lasting Power of Attorney (LPA) documents on 7th October 2019, one for Health and Welfare and one for Property and Finance. Both appointed his mother as his sole attorney.  It became clear, later in the proceedings, that at the point he executed these LPAs, he had recently suffered a brain injury in some kind of accident. 

The Public Guardian has brought proceedings to cancel these LPAs as not having been validly created – although they have no objection to P’s mother continuing to support P and make decisions with and for him, and don’t believe that it’s necessary to appoint deputies.[i]  

The Pubic Guardian’s position is that the donor (i.e. P) “lacked capacity to create the lasting powers of attorney for property and affairs and health and welfare dated 7 October 2019 pursuant to  section 9(2)(c) of the Mental Capacity Act 2005  (MCA)”.  This means that “pursuant to section 22(2)(a) of the MCA  the requirement for the creation of a lasting powers of attorney has not been met” and so “under Schedule 1, paragraph 18(a) that the Public Guardian cancels the registration of the LPAs”. 

We learnt that P’s mother has said she doesn’t object to the application made by the Public Guardian and consents to the order that the LPAs will be cancelled.  

However, P’s father (F) has filed an objection stating he feels P is capable of making his own decisions.

This hearing represented the first meeting between the Public Guardian and P’s father.  Elizabeth Calladine said she had “tried to make arrangements earlier but maybe due to the bank holiday it had not been possible to sort it”.

DDJ Kaufman suggested an opportunity for Ms Calladine to talk privately with F “to see if agreement could be reached” and what actions would be most appropriate next. 

DDJ Kaufman explained the evidence the court had so far was from the Special Visitor from the Local Authority who had completed a Deprivation of Liberty for P during which he was identified as not being capacitous. “Obviously,” she said, “you know your son well, and that is very important, and we would listen to your views carefully”. 

Ms Calladine and F agreed to talk privately with a period of twenty minutes set by DDJ Kaufman for all to reconvene.

Following private discussion

After twenty minutes the hearing was reconvened with what appeared a positive outcome. 

Ms Calladine acknowledged the “really productive” time spent talking with F and clarified that the basis of F’s objection was not the matter of retrospective capacity (for the LPAs completed in 2019), but instead the current capacity of P. 

We heard that that P “has come back so much following the accident”, with areas of improvement including moving from a specialist unit to an assisted living facility and the ability to manage his own personal care. 

We heard that when the Special Visitor had previously seen P, he was unable to retain information (a key component in a capacity assessment), but that this had now improved. Further examples of P’s improvement were cited as his ability to participate in the passport application process for a recent holiday to Turkey. 

Agreement was reached between Ms Calladine and F that the LPAs created in 2019 were probably not created validly (due to P’s lack of capacity at that time), but that there’s a strong possibility that P might have capacity to make LPAs now. 

Ms Calladine requested directions for a further (up-to-date) capacity assessment for P, to be conducted (if possible) by the same Special Visitor, as P had previously got on well with her.

DDJ Kaufman responded by acknowledging the “extremely positive progress” made.  She said, “It’s important that everyone is very aware that capacity is time-specific, which means he may not have capacity at one point, but that doesn’t mean he’ll never have it in the future”.  

Invited to say anything else he wanted to, P’s father said that “at the time the last capacity assessment was done, he’d just come out of the coma, after 9 months.  He’d been moved from pillar to post. It’s very different now”.  He recited some of his son’s recent achievements – going on holiday, making decisions about what he wants to eat, and what he wears, describing this progress as “a massive change”.  He said that physically P was still struggling, “but mentally it’s lovely for us, the change is so much”. 

Next steps

The concluding part of the hearing focused on clarification of next steps before a final hearing (or perhaps an agreed order) – including the requirement for a fresh capacity assessment.   

DDJ Kaufman closed the hearing by acknowledging that P is “lucky to have a very supportive and involved family”.

My understanding is that the existing LPAs will be cancelled (since nobody is disputing the Public Guardian’s submission that P lacked capacity at the time that he made them).  But if he is now found to have capacity to make LPAs, he will be able to re-make them in the same terms (or different ones if he prefers) now. 

Reflections

Listening to the hearing I reflected on three key points of learning.

  • Firstly, how capacity can change over time and why reassessment is so important. 
  • Secondly the importance of planning ahead: it is impossible for any of us to know if and when a sudden accident may happen.
  • Finally, capacity can follow an upwards trajectory. We are often used to a downward trajectory (e.g. for people with dementia). To hear of an upwards post-brain-injury trajectory felt particularly heart-warming. 

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 provides  EoLC Service Improvement and bespoke EoLC Education. Clare hosts Conversations About Advance Care Planning. She is also a  Lasting Power of Attorney Consultant and director of Speak for Me LPA. Connect with Clare on Twitter @ClareFuller17 


[i] A deputy is someone who has been authorised by the Court of Protection to make decisions for someone if they lack capacity. It may be necessary to appoint a deputy for someone who has not made a Lasting Power of Attorney or when the authority of attorney has been revoked. In essence, Attorneys are appointed by the person themselves in a Lasting Power of Attorney application before they lose capacity  and Deputies are appointed by the Court after capacity has been lost. There are significantly more costs in applying for Deputyship than for a Lasting Power of Attorney (and they are rarely granted for Health and Welfare).  Deputyship applications can also be a more lengthy process.  A further difference is the requirement of a Deputy to submit an annual report to the Office of the Public Guardian, something not required of an Attorney.

Photo by Alina Grubnyak on Unsplash

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