The Public Guardian v RI & ors [2022] WTLR 1133

Analysis

The court had to determine whether the donor (RD) under a lasting power of attorney for property and financial affairs executed in 2009 (the LPA) had had the capacity to execute it. RD had a learning disability and chronic schizophrenia for which he continued to receive treatment. The LPA was purportedly executed on 17 December 2009 by RD, who appointed his brothers (RI and RO) and his mother to be his attorneys. The LPA complied with the requisite formalities. At the time RD was living with his mother, but following her death in 2015 he was moved to a care home where he continued to live. In 2019 the manager of the care home contacted the Office of the Public Guardian with concerns about the management of RD’s financial affairs, which prompted an investigation. There was no suggestion of fraud or misconduct by the attorneys and the court was satisfied that all concerned in the case had sought to act in RD’s best interests at all times.

On 11 April 2019 a court general visitor, Mr Pratt, reported that RD may not have had capacity when he executed the LPA. On 9 July 2019 RD was assessed by Dr Ntanda, a consultant in old age psychiatry, who concluded that RD did not have capacity to manage his finances or to revoke the LPA and that it was ‘most likely’ that RD had not had capacity to execute the LPA in 2009. On 24 April 2020 the Office of the Public Guardian applied to the Court of Protection for the court to determine whether RD had lacked capacity to create the LPA in 2009 and, if so, whether the registration of the LPA should be cancelled and a deputy appointed.

The court considered ss22 and 9, and Sch 1, para 18 of the MCA 2005 and found that the formalities for executing the LPA had been complied with. The sole issue was whether RD had had capacity to execute the LPA on 17 December 2009. The Public Guardian contended that RD lacked capacity to execute the LPA in December 2009, whereas RI, RO, and D (RI’s wife, who assisted the attorneys) contended RD did have capacity at the relevant time.

Held:

The task of the court was to exercise its power under s22(2)(a) of the MCA 2005 to determine the question of whether a requirement for the creation of the LPA was met, the relevant requirement in this case being that at the time of execution RD had the capacity to execute it. If that requirement was not met, no authority was conferred on the donees and the LPA had always been invalid, and it would not be necessary to revoke it. Upon any finding that RD lacked capacity to execute the LPA, the court should record its determination and must then direct the Public Guardian to cancel registration of the LPA. Poole J was not satisfied that a declaration as to capacity under s15 of the MCA 2005 was also required – what was required was a determination of past capacity to execute the LPA.

In considering a question of past capacity, the principles under ss1 to 3 of the MCA 2005 apply to the specific decision at the specific time, but the court will have regard to all the evidence relevant to capacity at the material time, including evidence of matters that have come to light subsequent to the making of the decision in question (para [12]).

Poole J found it necessary to consider what the relevant information is for a donor to understand in relation to executing an LPA. People who want to make an LPA should be able to understand at the very least:

1. (a) what an LPA is;
2. (b) why they want to make it;
3. (c) who they are appointing as an attorney;
4. (d) why they have chosen that person or those people to be appointed; and
5. (e) what powers are being given to the attorney (para [13]).

With reference to past authorities, there was a distinction between an enduring power of attorney and a lasting power of attorney (para [14]).

The relevant information in relation to execution of an LPA is:

1. (a) the effect of the LPA;
2. (b) who the attorneys are;
3. (c) the scope of the attorney’s powers and that the MCA 2005 restricts the exercise of their powers;
4. (d) when the attorney can exercise those powers, including the need for the LPA to be executed before it is effective;
5. (e) the scope of the assets the attorneys can deal with under the LPA;
6. (f) the power of the donor to revoke the LPA when they have the capacity to do so; and
7. (g) the pros and cons of executing the particular LPA and of not doing so.

Poole J noted that the evidence before him was relatively sparse. Ideally, where there is a dispute about past capacity which the court is required to determine, it would be helpful to have evidence as to the following (para [27]):

1. (a) the certificate provider’s experience – in particular in making a sufficient assessment of the capacity of a prospective donor who is known to have a learning disability or other impairment which might affect their capacity to execute an LPA – as well as their usual practice or their specific recollections of the making of the LPA;
2. (b) evidence from carers and family members relevant to P’s capacity to execute an LPA at the relevant time and to any changes in P’s condition, relevant to capacity, over time;
3. (c) medical evidence, capacity assessments, assessments for benefits, records from carers or activity centres, or other professional evidence roughly contemporaneous with the relevant date when the LPA was executed; and
4. (d) an assessment by a suitably qualified and experienced person of P’s current capacity and reasoned opinion as to their capacity to execute the LPA at the relevant time, such opinion being informed by a review of relevant medical records, contemporaneous assessments, and the evidence from carers and family members.

The court should not set the bar too high. The fact that RD may not have understood every provision in the making of the LPA, or every possible consequence of making it or not making it, did not necessitate a finding that he could not have understood explanations given to him in a way that was appropriate to him.

Poole J accepted the evidence of Dr Ntanda that RD had an impairment in the functioning of his brain which affected him in 2009 and found Dr Ntanda’s assessment of RD as a whole compelling evidence that at the time of his assessment RD lacked the capacity to execute an LPA. The evidence provided as to the events surrounding the making of the LPA did not weigh heavily against Dr Ntanda’s professional opinion that RD would not have had capacity at that time. RD’s learning disability rendered him incapable now of managing his property and financial affairs. He would not have capacity now to revoke the LPA or to execute an LPA. The evidence from the family, from Mr Pratt and from Dr Ntanda persuaded Poole J that at the time of executing the LPA in 2009 RD did not have the ability to understand, retain, weigh or use the relevant information due to an impairment in the functioning of his brain. The evidence displaced the presumption of capacity and Poole J concluded that on the balance of probabilities RD lacked capacity to execute the LPA in 2009.

JUDGMENT POOLE J: [1] The sole question which this judgment addresses is whether the donor under a Lasting Power of Attorney for Property and Financial Affairs (LPA) executed in 2009 had capacity to execute it. I understand that although it is not uncommon for the courts to determine past capacity to execute an LPA, there …

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