By Celia Kitzinger, 31st January 2023
At some point in the future, there may be a time for all of us when we can’t make decisions for ourselves.
It may come suddenly, as it did for my younger sister, Polly, who was catastrophically brain-injured in a car crash in 2009.
Or we may lose capacity to make our own decisions slowly, little by little, with a neurological illness such as dementia.
For some people it comes as a nasty shock to realise that family members are NOT able to make decisions on behalf of an incapacitous adult. “Next of kin” has no legal meaning in this situation. Instead, if you haven’t made a Lasting Power of Attorney, the state takes over – decisions are made by doctors and social workers, court-appointed Deputies, and (at last resort) by the Court of Protection.
That’s why many of us have appointed someone we trust to make decisions for us in the future, if that’s ever needed. The mechanism for doing this is a Lasting Power of Attorney – and there are two different kinds: one covers decisions about property and finance; the other covers decisions about health and welfare. (There was no information in this hearing about whether the court is concerned with only one or the other kind of Attorney, or with both.)
I have appointed both kinds of attorney for myself because I was horrified and dismayed by what happened after my sister’s brain injury. The people who knew and loved her were not able to intervene effectively in decision-making about her health care, meaning that they gave her treatments we were all sure she would have refused if she could. And dealing with her bank accounts and bills and the sale of her house was very difficult. I don’t want to leave anyone in my family struggling like that again – so I’ve given them the legal power to make decisions.
My own choices for attorneys are simple. For both ‘Health and Welfare’ and for ‘Property and Finance’, my wife is my attorney: she’s the person I want as my decision-maker. I trust her to decide (if I cannot) where I should live, what kind of care I should have, and how to manage my money. If she’s not able to act (e.g. because we are in a car accident together), then one of my sisters is named as my ‘replacement attorney’. My choices of attorney are recorded on my Lasting Power of Attorney forms and registered with the Office of the Public Guardian.
What I gathered from this short hearing before Mr Justice Peel[1] was that some people are trying to make more complicated arrangements.
The hearing
Matters weren’t laid out in any detail (that will happen at a later hearing) but it seems that some people want to appoint two (or more) attorneys to act jointly (meaning they must agree each decision between them) – or jointly for some decisions and severally for others (meaning that they must make certain decisions together and agree them unanimously, but can make other decisions individually). That’s provided for on the forms, though the instructions for filling them in do say that if you appoint your attorneys to act “jointly” on everything, this could cause problems, because “If your attorneys can’t all agree on a decision, it can’t be made“.
The forms encourage the person completing them to consider the “jointly and severally” option saying “some people pick this option because they don’t mind their attorneys taking everyday decisions alone but want them to make important decisions together, such as selling a house”. There’s an example of what this would look like:
“My attorneys must act jointly for decisions about selling or letting my house and may act jointly or severally for everything else”
“My attorneys must act jointly for decisions I have authorised them to make about life-sustaining treament and may act jointly and severally for everything else”.
The forms also offer the opportunity to appoint a ‘Replacement Attorney’ who can step in if the nominated attorneys can’t act (e.g. they’ve died or lost capacity themselves).
I don’t know the details of what the people whose forms are now before the Court of Protection were trying to do in their applications – but whatever it is, their forms have raised questions for the Public Guardian about whether what they want is compliant with the law, i.e. does the Mental Capacity Act 2005 permit it.
Counsel for the Public Guardian, Neil Allen, said: “These LPAs have been carefully chosen by the Public Guardian as test cases to illustrate the legal issues requiring the court’s determination and guidance”.
In his opening summary he said that the people whose applications have been consolidated for this case “have either tried to create a lead attorney or provide for a majority rule or organise for the replacement of replacement attorneys. This raises validity issues, and whether any provisions need to be severed. There are over 100 similar cases which the Public Guardian is considering and will be affected by judgment in this case”.
I’m trying to imagine what people have done to cause the Public Guardian these concerns, and what that would look on the completed forms (which of course I haven’t seen). Maybe people have tried to complete the forms to achieve effects like these (examples invented by me!).
- “I appoint my three daughters, A, B and C as my attorneys to act jointly and severally but in any situation where they are acting jointly and they can’t agree, I want my daughter A’s decision to be final”
- “I appoint my three daughters A, B and C as my attorneys to act jointly and severally but in any situation where they are acting jointly and they can’t agree, I want the majority decision that any two of them agree on to be final”
- “I appoint my three daughters A, B and C as my attorneys to act jointly and severally, and my son D as a replacement attorney if any one of them becomes unable to act. If D is also unable to act, then I authorise A to choose another replacement attorney.”
- “I appoint my three daughters A, B and C to make decisions jointly and severally. Any decisions about life-sustaining treatment must be made jointly, and other decisions can be made severally. Decisions about where I live and am cared for must be made only by A, and decisions about my religious worship and diet must be made only by B.
These are entirely invented examples and I’ve no idea whether they accurately reflect the problems before the court. I will learn more (I hope) at the next hearing.
The case will be heard on 19th April 2023 (probably in person) by Mr Justice Hayden in the Royal Courts of Justice. It’s anticipated that none of the people who actually filled in the forms that are raising questions for the Public Guardian will be there (though they have been informed of the case and told that they can apply to be joined as a party). Instead, the Official Solicitor will be invited to act as Advocate to the Court. This role is described in a practice note:
“The Official Solicitor is also sometimes invited to act as Advocate to the Court. A court may seek the assistance of an Advocate to the Court when there is a danger of an important and difficult point of law being decided without the court hearing relevant argument. The Advocate to the Court’s function is to give to the court such assistance as they are able on the relevant law and its application to the facts of the case. An Advocate to the Court does not represent any party.” (Appointment of the Official Solicitor in property and affairs proceedings [2021])
At the short hearing I observed, the judge agreed that all the applications could be heard together (only seven appeared in the court listing, but there was reference to nine in court). He also agreed that the Official Solicitor would be invited to act as Advocate to the Court, and that the hearing would be on 19th April 2023 (before Hayden J). Finally, he made some suggestions for improving the wording of the matters that needed to be determined.
Delay
I’m left worrying about the position of the (seven or nine) people who filled in the forms, said who they wanted to make decisions for them, and who are now waiting for the court to decide whether or not their forms are validly made (as well as the “over 100 similar cases” referred to by counsel for the Public Guardian).
Until these people’s forms are registered and given a special ‘date stamp’ by the Public Guardian, they’re not valid. If they lose capacity to make the relevant decisions while the Public Guardian is still waiting for a court ruling about whether what they’re asking for is compatible with the requirements of the Mental Capacity Act 2005, then the effect is that they haven’t appointed anyone to make decisions on their behalf, and the risk is that it would then be too late to do so (because they might also have lost capacity to make an LPA). And certain provisions from their LPA may be severed – without them having the chance to consider the impact of this on their LPA choices.
If this were me, I’d be extremely anxious. I’d want (at least) to know right away what bit of my form was causing problems, and to be given the opportunity to submit a revised version even if it wasn’t exactly what I really wanted – because that way at least I’d have put something in place to protect myself and my family while the wheels of justice moved slowly on. I hope they’ve been offered suitable legal advice (for free) about what they might do in this situation. (This wasn’t addressed in court, but I understand something along these lines might have occurred.)
I don’t know when these people submitted their forms to the Office of the Public Guardian but there was reference to the applications having been sent to another judge (HHJ Hilder) in May 2022. According to the website: “It takes up to 20 weeks to register an LPA if there are no mistakes in the application”, so these people would have realistically expected to have had their attorneys lawfully appointed by October 2022 at the latest.
As it turns out, they haven’t made “mistakes” – they’ve just said they want to appoint attorneys in ways that the lawyers aren’t sure are lawful. But they are having to wait a further six months from the date by which they might reasonably have expected their LPAs to have been registered for a hearing in April 2023 which (according to Peel J) will be only a directions hearing, and not a final hearing. I imagine that a final decision is unlikely to be made until Summer 2023, more than a year since their applications to register their LPAs were made. And in the meantime, there is a real risk that some of them will lose capacity and find that they don’t have the protection of attorneys in place and that its too late for them to re-submit the forms in compliance with whatever the court decides is lawful.
“I’m a bit troubled by the delay”, said the judge. “I’m just not sure why it’s taken so long. I’m very sorry it has.”
I am too.
And I hope the Public Guardian is taking appropriate steps to protect the autonomy of the hundred or more people whose advance planning (for care, for finance, or for both) might be very seriously affected by the current uncertainty about the law.
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She has personally observed more than 380 hearings in the Court of Protection. She tweets @kitzingercelia
[1] COP Nos: 13954400, 13954481, 1395439T, 13954446, 13954475, 1395443T, 13954383, 13954498, 13954423
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