Analysis
On 9 September 2012, the first respondent (Dr Boff) executed a lasting power of attorney for property and financial affairs, in which she appointed her husband to be her sole attorney, and then attempted to appoint three replacement attorneys in order of succession. Dr Boff’s husband, the second respondent (Mr Boff), executed a virtually identical LPA on the same day and they applied to the Office of the Public Guardian (the OPG) to register the instruments.
On 7 November 2012, the OPG wrote to Dr Boff’s solicitors stating that they were unable to register the LPAs on the basis that replacement attorneys cannot replace other replacement attorneys. The OPG was, however, prepared to register the LPAs if the Court of Protection severed the ineffective provisions. Accordingly, on 5 June 2013, the OPG applied for an order in those terms: the witness statement prepared on behalf of the Public Guardian accepted that there was no express limitation or exclusion of successive appointments in the Mental Capacity Act 2005, but relied on the pre-legislative history to that Act and the scheme for LPAs more generally.
On 28 June 2013, by an acknowledgment of service and witness statement, Dr Boff objected to the application and sought registration of the LPA in its originally executed form. Dr Boff highlighted the fact that MCA 2005, s10(8) does not expressly state that replacements may only be of original attorneys, questioned whether pre-legislative material should properly be taken into account in interpreting an act of Parliament and suggesting the hardship that might be caused by the applicant’s interpretation of s10(8).
Held:
- (1) MCA 2005, s10(8) is ambiguous with respect to successive appointments and therefore recourse should properly be had to pre-legislative material to help determine the intended meaning of the section (Pepper v Hart [1992] UKHL 3) (paras 42-43).
- (2) Having regard to the pre-legislative history, in particular the radical shift between Law Commission recommendations that successive appointments should not be permitted in 1983 and the recommendation that donors should be able to appoint an alternate attorney in 1995, the scheme of the MCA 2005 more generally and the prescribed form of an LPA which makes no provision for sole successive appointment, a replacement attorney can only replace an original attorney (para 46).
- (3) Accordingly, the second and third replacement attorneys were severed from Dr and Mr Boff’s LPAs (this being their preference over MCA 2005, s10(5) operating to appoint the three named replacement attorneys jointly).
- (4) Obiter:
- (i) To achieve what she intended within the existing framework, Dr Boff should have executed two LPAs each appointing one attorney and one replacement attorney, with a condition that the second instrument will not come into effect until the first instrument has ceased to operate (para 48).
- (ii) Previous Law Commission reports and the Mental Capacity Act 2005 failed to deal with the complexities of successive appointments. Traditionally such appointments were considered a bad idea and indeed there practical problems with such appointments (paras 50-52).
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