A recent ruling by the Court of Protection (CoP) in the case of TA v Public Guardian (2023 EWCOP 63) suggests that existing lasting powers of attorney (LPAs) could be overturned, even if the donor's capacity was not in question when the LPA was signed. B P Collins' private client team explores the implications of this decision and how you can create a robust LPA.
The CoP decision clarifies that a certificate provider must ensure that the donor fully comprehends the purpose and significance of the LPA before signing it, rather than simply confirming the donor's capacity. If this requirement is not met, the LPA can be declared invalid and revoked if later challenged.
Certificate providers have always needed to have known the donor for at least two years or be a relevant professional, such as a lawyer or doctor, with the necessary skills to make this judgement. However, the recent CoP case underscores how the certificate providers must also really think carefully as to whether the donor understands what they are doing, the scope of the document they are signing, and ensuring that they were not under undue pressure or fraudulent misrepresentation. The certificate provider should not simply be signing the document to confirm the donor has capacity.
In the TA case, the validity of existing LPAs was put into focus when one of the donor's children sought advice on whether they could be revoked. It was established that the donor lacked mental capacity, prompting an investigation into the creation of the LPA. The investigation revealed that the certificate provider had not sufficiently ensured the donor's understanding and freedom from undue pressure or fraud, leading to the LPA being declared unenforceable. As the number of registered LPAs and disputes rise, the TA ruling may make it even easier to demonstrate an LPA was never valid.
This may have two consequences...
For those family members who are concerned about the potentially dubious circumstances surrounding the preparation of an LPA for a vulnerable person, it provides comfort to know that case law provides a potential route to challenge the existing arrangements and achieve justice for a loved one.
On the flipside, if an LPA is prepared without professional support and advice, it increases the risk that an LPA can be overturned. If the LPA is merely signed off by a friend, neighbour or family member with no real understanding of what the purpose, significance and scope of an LPA is, nor has asked questions relating to the circumstances surrounding the preparation of the document, it equally provides an easy way to overturn an LPA, particularly where family members disagree with the original appointment.
How can a lawyer help you to create a robust LPA?
- Although LPAs can be created without one, a lawyer can fully explain the pros and cons and what an LPA means for the donor.
- They can make sure that the donor has capacity to understand the process, comprehends the purpose and significance of the LPA, and that there is no undue influence involved in the making of the LPA.
- Lawyers are good sounding boards when the client is deciding who to appoint and how they can act.
- Lawyers can add an extra safeguard by storing the LPA until needed, as it is a live document once registered with the Office of Public Guardian.
- Lawyers can be appointed as attorneys too, in more complex situations.
- All advice can be conducted over a video or phone call to help you create an LPA.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.