TA v The Public Guardian [2024] WTLR 1125

Analysis

In January and April 2021, KA made lasting powers of attorney (LPAs) for property and affairs and health and welfare respectively, both appointing her daughter, the claimant, as her sole attorney. The certificate required under para 2(1)(e) of Sch 1 of the Mental Capacity Act 2005 was provided by X who was the claimant’s ex-mother-in-law and close family friend of KA. On investigation of the making of the LPAs, X stated that she had asked KA if she was happy with the LPAs and KA had not expressed any wishes as to who she wanted to be her attorneys or how they should act. Investigations by the defendant suggested that, in December 2021, KA wanted all three of her children to be her attorneys together.

Held:

1. (1) On statutory interpretation, the certificate under para 2(1)(e) of Sch 1 of the Mental Capacity Act 2005 had to include particular content: it had to certify that the certificate provider had an opinion on three specific matters. Accordingly, a valid certificate must be based on an opinion as to those three matters. If the certificate provider did not have such an opinion, there would not be a valid opinion. It followed that the court was entitled to check that the requisite opinion had been formed.
2. (2) In this case, it was not argued on appeal that X had formed the requisite opinion. Therefore, the decision at first instance was upheld and the LPAs were invalid.

JUDGMENT MRS JUSTICE LIEVEN DBE: [1] This is an appeal from a decision of HHJ McCabe sitting at Wolverhampton in the Court of Protection. It raises a discrete but important point about the duties of a person who provides a certificate under para 2(1)(e) Sch 1 of the Mental Capacity Act 2005 (‘MCA’). [2] The …

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