Cretney & Lush Contents - LexisNexis · 2017-11-30 · Cretney & Lush on Lasting and Enduring...

Cretney & Lush on Lasting andEnduring Powers of AttorneyEighth Edition

Caroline Bielanska LLB (Hons), TEP, Solicitor

Caroline Bielanska Consultancy

Denzil Lush BA, MA, LLM

Former Senior Judge of the Court of Protection

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0003 [ST: 1] [ED: m] [REL: 8] Composed: Mon Oct 2 08:12:49 EDT 2017

XPP 9.0C.1 SP #4 SC_00LAW nllp CLEPA

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Cretney & Lush on Lasting and Enduring Powers of Attorney

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Contents

Foreword V

Preface XI

Table of Cases XLI

Table of Statutes XLII

Table of Statutory Instruments LV

PART I LASTING POWERS OF ATTORNEY

Chapter 1 The History of Enduring and Lasting Powers ofAttorney

Introduction

The automatic revocation rule at common law 1.1

Avoiding court proceedings 1.5

Durable powers of attorney in the United States of America

Early prototypes of durable powers of attorney 1.7

Uniform Probate Code (1969) 1.8

The Law Commission’s recommendations

Report on Powers of Attorney (1970) 1.12

The Incapacitated Principal (1983) 1.13

Enduring Powers of Attorney Act 1985

Principal features of the Enduring Powers of Attorney Act1985 1.18

Reaction in other jurisdictions to the Enduring Powers ofAttorney Act 1985 1.20

The impact of the Enduring Powers of Attorney Act 1985 1.23

Enduring Powers of Attorney: A Report to the Lord Chancel-lor (1991) 1.27

The Law Commission’s project on mentally incapacitated adultsand decision-making

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Consultation papers 1.29

Mental Incapacity (1995) 1.31

The prime policy aim is to encourage anticipatorydecision-making 1.32

Donors should be permitted to delegate authority to makepersonal welfare and health care decisions 1.33

The need for a different description from ‘enduring’ power ofattorney 1.34

The Law Commission’s specific recommendations on continu-ing powers of attorney 1.35

Developments between 1995 and 2005

Making Decisions (1999) 1.36

Quinquennial Review of the Public Trust Office (1999) 1.37

Draft Mental Incapacity Bill (2003) 1.39

Joint Committee on the Draft Mental Incapacity Bill (2003) 1.40

The Government’s response to the Scrutiny Committee’s re-port (2004) 1.42

Legislative passage of the Mental Capacity Act 2005 1.43

Developments since the implementation of the Mental CapacityAct 2005

Commencement of the Mental Capacity Act 2005 1.44

Revision of the 2007 prescribed forms of LPA 1.46

United Nations Convention on the Rights of Persons withDisabilities 1.49

Digitalisation of the OPG’s services 1.51

House of Lords Select Committee on the Mental Capacity Act2005 1.53

The future of Lasting Power of Attorney research 1.57

OPG’s digital LPA tool 1.58

Proposal for new forms 1.59

The National Mental Capacity Forum 1.62

Statistics 1.64

The digital future 1.65

Chapter 2 Differences between Enduring Powers of Attorney andLasting Powers of Attorney

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Chapter 3 Capacity to Create a Lasting Power of Attorney

Age 3.1

Statutory definition of lack of capacity 3.2

Functional approach to capacity 3.4

The diagnostic threshold 3.6

The statutory principles 3.9

Presumption of capacity 3.12

All practicable steps 3.14

Unwise decisions 3.16

Unjustified assumptions 3.20

Inability to make decisions 3.22

Relevant information 3.27

Standard of proof 3.34

Certification 3.35

Further guidance on assessing capacity 3.36

The criteria in Re K, Re F and LPAs 3.38

Chapter 4 Attorneys

Who may be an attorney?

Introduction 4.1

Minors 4.2

Trust corporations 4.3

Bankrupts 4.7

Office-holders 4.8

More than one attorney

Number of attorneys 4.11

Joint and joint and several appointments 4.12

Failure to specify whether joint or joint and several 4.18

Effect of one attorney failing to satisfy the qualifications forappointment 4.21

Application for registration where there is more than oneattorney 4.24

Objection to registration where there is more than oneattorney 4.27

Effect of termination of one attorney’s authority 4.30

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Replacement attorneys

Section 10(8) 4.36

The donee cannot appoint his own replacement 4.37

Policy considerations 4.38

Events causing the replacement of a donee 4.41

Number of replacement attorneys 4.45

Replacement sequence 4.46

Practical problems with replacement attorneys 4.47

Choosing an attorney

Guidance for donors 4.52

Appointing a spouse or civil partner 4.54

Chapter 5 Named Persons

Summary 5.1

Policy and legislative history 5.6



The Law Commission’s consultation paper (1992) 5.10

The Law Commission’s report on Mental Incapacity (1995) 5.11

The Joint Committee’s report on the Draft Mental IncapacityBill (2003) 5.12

The Report Stage of the Mental Capacity Bill (2005) 5.13

Transforming the Services of the Office of the Public Guardian(2012) 5.14

Requirements of the Act regarding named persons 5.16

Maximum number of five named persons 5.18

An attorney may not be a named person 5.21

Where there are no named persons 5.25

The contents of the instrument relating to named persons 5.27

Notifying the named persons 5.32

Notice of Intention to Apply for Registration of a Lasting Powerof Attorney: LP3 5.35

Practical points 5.39

Where the named persons have died or cannot be contacted 5.41

Dispensing with the requirement to notify 5.42

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The Code of Practice and the named persons 5.46

Chapter 6 Certificate Providers

Introduction 6.1

Policy and legislative history

The purpose of the certificate 6.7

An overview 6.8



Law Commission consultation paper Mentally IncapacitatedAdults and Decision-Making: A New Jurisdiction (1992) 6.12

Law Commission report, Mental Incapacity (1995) 6.13

Who Decides? (1997) 6.14

Department for Constitutional Affairs, Consultation PaperCP 01/06 6.15

Response to Consultation Paper CP 01/06 6.16

Transforming the Services of the Office of the Public Guardian(2012) 6.19

Transforming the Services of the Office of the Public Guardian:Enabling Digital by Default (2013) 6.21

The requirement for a certificate 6.25

Persons who may provide the certificate 6.26

The certificate provider must be chosen by the donor 6.28

Category A – Knowledge certification 6.29

Category B – Skills certification 6.35

Registered health care professionals 6.39

Barristers, solicitors or advocates 6.40

Registered social workers 6.42

Independent mental capacity advocates 6.43

When should professionals be involved? 6.46

Persons who are disqualified from giving a certificate 6.47

Former requirement for two certificates where the instrumenthas no named persons 6.49

The role and responsibilities of a certificate provider

The certificate provider must act independently 6.51

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Guidance 6.53

Case-law on the eligibility of certificate providers 6.56

Chapter 7 Execution of a Lasting Power of Attorney

Summary 7.1

The prescribed form

An LPA must be in the prescribed form 7.13

Two prescribed forms 7.18

Meaning of ‘in the prescribed form’ 7.24

Continuation sheets 7.25

Welsh language versions 7.32

Large print versions 7.33

Filling in the form

Before filling in the form 7.34

The people involved in your LPA 7.35

Guidance 7.36

Filling in the form 7.38

Continuation sheets 7.39

Execution by the donor

The donor must read (or have read to him) all the prescribedinformation 7.40

The donor must complete Sections 1-7 of the instrument, andsign Section 9 of it in the presence of a witness 7.45

Signature or mark 7.46

The witness of the donor’s signature 7.47

Execution at the direction of the donor 7.50

The certificate provider

The certificate provider must read Sections 8 and 10 ofthe LPA 7.54

The certificate provider should read the LPA 7.55

The certificate provider should discuss the form with thedonor in private, if possible 7.56

The certificate provider must form an opinion on thedonor’s capacity 7.60

The certificate provider should keep a record of the assessment 7.64

The certificate provider must complete the certificate in Sec-

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tion 10 of the instrument and sign it 7.67Execution by the attorney

The attorney must read all the prescribed information inSection 8 7.71

The attorney must complete Section 11 of the instrument, andsign and date it in the presence of a witness 7.75

The witness of the attorney’s signature 7.79

Execution by a trust corporation 7.81

Execution by a replacement attorney 7.83

Re-execution 7.86

Consequences of failure to comply with the formalities

An instrument which does not comply with the statutoryrequirements confers no authority 7.87

An unregistered LPA cannot operate as an ordinary power ofattorney 7.88

Immaterial differences 7.89

The court may declare that an LPA that is not in theprescribed form is to be treated as if it were 7.91

Omissions 7.92

Severance of ineffective or invalid provisions 7.93

Chapter 8 Application to Register a Lasting Power of Attorney

Introduction

Summary 8.1

An LPA must be registered 8.2

Obtaining the registration forms 8.3

The applicant 8.6

Form LP3

Form LP3: Notice of intention to register a Lasting Power ofAttorney 8.8

There is no need for the applicant to notify anyone other thannamed persons or people to notify 8.11

Where the applicant is unable to locate a named person 8.15

Dispensing with the requirement to notify a named person 8.16

Sections 12–15 of the LPA Form or Form LP2

Application to register a Lasting Power of Attorney 8.19

Offences 8.25

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Documents to be sent to the Office of the Public Guardian 8.26

Where the original LPA is missing 8.28

Forms LPA 003A and LPA 003B

Form LPA 003A: Notifying the attorney 8.32

Form LPA 003B: Notifying the donor 8.34

Duty of the Public Guardian to provide the donor with anexplanation of form LPA 003B 8.36

Processing the application 8.37

Defects in the LPA 8.38

Defects in the application 8.39

Repeat applications to register 8.40

The prescribed period to elapse before registration 8.44

Circumstances in which the Public Guardian must not register 8.45

Registration 8.46

Form LPA 004: Notice of registration of an LPA 8.47

The appearance of a registered LPA 8.49

Office copies of the registered LPA 8.51

Application to register a replacement attorney 8.53

Chapter 9 Objections to Registration of a Lasting Power ofAttorney

Introduction 9.1

Factual grounds of objection

List of factual grounds 9.11

Donor’s bankruptcy 9.12

Attorney’s bankruptcy 9.15

Dissolution or winding-up of a trust corporation 9.18

Donor’s death 9.19

Attorney’s death 9.20

Dissolution or annulment of marriage or civil partnership 9.21

Attorney’s incapacity 9.23

Attorney’s disclaimer 9.26

Objection on factual grounds

The objection must be sent to the Office of the PublicGuardian 9.28

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Time limit of three weeks 9.29

LPA 007: Notice of objection 9.30

Notice that the ground of objection is established 9.33

Request for further information 9.34

Notice that, although the ground of objection is established,the instrument is not revoked 9.35

Right to make further objection 9.37

Effect of successful objection on factual grounds 9.38

Objection by donor

Introduction 9.39

Schedule 1, paragraph 14 9.41

Time limit of three weeks 9.43

LPA 006: Objection by the donor 9.44

The attorney must apply to the court to direct the PublicGuardian to register 9.46

Capacity to object to registration 9.49

Objection on a prescribed ground

List of prescribed grounds 9.51

That one or more of the requirements for creating an LPAhave not been met 9.54

That the power has been revoked or has otherwise come to anend 9.57

That fraud or undue pressure was used to induce the donor tocreate an LPA 9.59

The attorney’s behaviour contravenes his authority, or is notin the donor’s best interests 9.62

Objection to the Court of Protection

Introduction 9.67

Permission 9.68

Obtaining the forms 9.69

COP 7: Application to object to the registration of an LPA 9.71

LPA 008: Notice to the Office of the Public Guardian of anapplication to object to the registration of an LPA made tothe Court of Protection 9.74

Issue of application form 9.75

Service of documents 9.77

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Certificate of service 9.81

Responding to the application 9.82

Dealing with applications 9.83

Decisions based on the application without a court hearing 9.84

Reconsideration of orders made without a hearing 9.86

Directions about the application 9.87

Section 49 reports 9.88

Decision to hold an attended hearing 9.91

Hearings 9.94

Burden of proof 9.99

Notifying the donor of the final order 9.100

Appeals 9.101

Chapter 10 Functions of the Public Guardian

Introduction

The Public Guardian 10.1

The functions of the Public Guardian in relation to LPAs 10.2

Annual report 10.5

Functions relating to establishing and maintaining the registerof LPAs

The purpose of registration 10.6

Registration is compulsory 10.7

Registration is a purely administrative function 10.9

The Public Guardian’s duty to establish and maintain theregister 10.11

Contents of the register 10.13

Accessibility of register and confidentiality 10.14

Search by the Public Guardian 10.17

Disclosure of additional information 10.19

Procedure on applying for a search 10.21

Functions relating to the registration of LPAs

Registration procedure 10.28

Immaterial differences from the prescribed form 10.37

Circumstances in which the Public Guardian is preventedfrom registering an instrument 10.39

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Provision of court order to Public Guardian 10.40

Notifying applicants of non-registration of an instrument 10.41

Functions on cancellation of registration

Circumstances in which registration must be cancelled 10.42

Duty to notify on cancellation 10.43

Recording alterations in registered powers 10.44

Complaints and investigations

Identifying and tackling possible abuse 10.48

Dealing with representations (including complaints) about anattorney 10.50

Making applications to the Court of Protection 10.55

Visits by the Public Guardian or by Court of ProtectionVisitors at his direction 10.56

Power to require information from attorneys 10.62

Publications 10.68

Chapter 11 Functions of the Court of Protection

Introduction 11.1

The structure of the Court

The Court of Protection 11.4

Judges of the Court of Protection 11.6

Appeals 11.7

Functions of the court 11.8

Court of Protection Rules 2007 11.9

Practice directions 11.10

Court forms 11.11

Separation of supervisory functions between the Court and thePublic Guardian

Separation of functions 11.12

The court has no jurisdiction to review decisions of the PublicGuardian 11.15

Powers of Court in relation to the validity of LPAs 11.16

Powers of Court in relation to applications to register an LPA

Summary of powers in relation to applications toregister LPAs 11.17

Where the instrument is neither the original nor a certified

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copy of it 11.18

Dispensing with the requirement to notify named persons 11.22

Declaration that an LPA, which is not in the prescribed form,is to be treated as if it were 11.26

Severance of ineffective or illegal provisions 11.31

Application to register an LPA where a deputy has beenappointed 11.35

Objections to the registration of an LPA 11.36

Supervisory powers where the donor lacks capacity

Policy and legislative history 11.37

Summary of powers of the court in relation to the operationof LPAs 11.38

Directions with respect to decisions which the attorney hasauthority to make and which the donor lacks capacity tomake 11.39

Consent or authorisation to act which the attorney wouldhave to obtain from the donor if he had the capacity to give it 11.40

Directions to the attorney with respect to the rendering by himof reports or accounts, and the production of records 11.42

Requiring the attorney to supply information or to producedocuments or things in his possession 11.43

Directions with respect to the remuneration or expenses of theattorney 11.45

Relieve the attorney from any liability that he has or may haveincurred on account of a breach of his duties as attorney 11.48

Authorising the making of gifts which are not permitted bysection 12(2) 11.49

Authorising a person to execute a will on behalf of the donor 11.51

Power to call for reports 11.53

Revocation of an LPA by the court 11.56

Chapter 12 Fees and Costs

Fees: the statutory framework 12.1

The Public Guardian’s fees 12.2

Court of Protection fees 12.4

The Public Guardian’s fees

Fees payable to the Public Guardian 12.7

Payment terms and methods 12.8

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Application to register an EPA 12.13

Application to register as an LPA 12.16

Repeat application to register an LPA 12.20

Office copies 12.24

Enduring Power of Attorney office copy fee 12.25

Lasting Power of Attorney office copy fee 12.27

Search fee (abolished) 12.30

Exemptions 12.32

Reductions and remissions in exceptional circumstances 12.34

Review 12.40

Court of Protection fees

Fees payable to the Court of Protection 12.41

Payment terms and methods 12.43

Application fee 12.46

Appeal fee 12.51

Hearing fee 12.52

Fees for copies of court documents 12.54

Consultation and report 12.56

The Courts and Tribunals Fee Remissions Order 2013 12.57

Disposable capital test 12.58

Gross monthly income test 12.59

Costs

Sources of law 12.60

Rules 156 to 159 12.61

Practice directions on costs 12.62

Case-law 12.63

Chapter 13 The Scope of the Attorney’s Authority Under a LastingPower

Introduction

The attorney has no authority unless the instrument isregistered 13.1

General authority 13.2

Scope of authority under an LPA 13.6

Meaning of ‘property and affairs’ 13.9

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Examples of decisions relating to property and affairs 13.10

Acting as a company director 13.11

Meaning of ‘personal welfare’ 13.12

Examples of health and welfare decisions 13.13

Restrictions on the scope of the attorney’s authority

General 13.15

Excluded decisions under the Mental Capacity Act 2005 13.16

Excluded decisions relating to family relationships 13.18

Excluded decisions relating to Mental Health Act matters 13.20

Excluded decisions relating to voting rights 13.23

Decisions excluded by other enactments 13.24

Decisions excluded by the common law of agency 13.25

Acting for the donor as an administrator or executor 13.26

Specific restrictions imposed by the Mental Capacity Act 2005

Use of restraint 13.27

An attorney can only make personal welfare decisions whichthe donor does not have the capacity to make himself 13.31

Effect of an advance decision to refuse treatment 13.33

Life-sustaining treatment 13.36

Gifts 13.42

Maintenance 13.48

Gratuitous care 13.53

Substitutes or successors 13.54

Conditions or restrictions imposed by the donor

The prescribed form 13.55

Guidance distinguished from conditions and restrictions 13.58

Severance of ineffective or invalid provisions 13.61

Examples of provisions that the court has severed 13.64

Decision-making by the attorney

Introduction 13.65

The principles 13.68

Assisting the donor to make his own decisions 13.71

Assessing the donor’s capacity 13.73

Acting in the donor’s best interests 13.76

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Making decisions about life-sustaining treatment 13.80

Consulting others 13.81

Other Duties

Regard to the Code 13.84

Fiduciary duties 13.85

Court guidance on investments 13.86

Attorney’s liability for wrongs of co-attorney 13.90

Chapter 14 Revocation, Disclaimer and Termination of LastingPowers of Attorney

Introduction 14.1

Revocation by the donor

The donor may revoke the power at any time when he hascapacity to do so 14.3

Capacity to revoke an LPA 14.4

Steps necessary for revocation 14.6

Procedure following revocation by the donor 14.8

The court may determine whether an LPA has been revoked 14.9

Disclaimer by the attorney 14.10

Prescribed form of disclaimer: LPA 005 14.12

The completed form LPA 005 must be sent to the donor 14.16

Copies of the completed form LPA 005 must be sent to thePublic Guardian and to the other donee(s) 14.17

The effect of a disclaimer 14.21

Revocation by operation of law

Donor’s bankruptcy 14.25


Dissolution or winding-up of a trust corporation attorney 14.32

Donor’s death 14.33

Attorney’s death 14.34

Attorney’s incapacity 14.35

Dissolution or annulment of a marriage or civil partnershipbetween the donor and the attorney 14.36

Revocation by the Court of Protection 14.38

Suspension of the LPA 14.46

Functions of the Public Guardian on revocation 14.47

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Functions of the Public Guardian on partial revocation 14.48

Chapter 15 Lasting Power of Attorney Precedents

Part 1: both kinds of LPA 15.1

Part 2: LPAs for property and financial affairs 15.9

Part 3: LPAs for health and welfare 15.37

PART II ENDURING POWERS OF ATTORNEY

Chapter 16 Granting an Enduring Power of Attorney

Introduction

Essentials of an enduring power of attorney 16.1

Is a defective EPA valid as an ordinary power? 16.2

The donor

The donor must be an individual 16.3

The donor must have had mental capacity when creating thepower 16.4

Evidence of mental capacity 16.11

Other incapacity 16.13

The attorney 16.14


Individuals

Appointment of more than one attorney 16.18

Substitute and successor attorneys 16.20

The form of the power 16.21

The prescribed form

Use of prescribed form was mandatory 16.23

Permitted variations 16.34

Additions 16.35

Restrictions 16.43

Short form of EPA 16.48

Execution of the power 16.49

The requirements of execution and attestation 16.50

Execution - special cases 16.53


Attestation by spouse 16.58

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Alterations 16.59

Consequences of failure to comply with the formalities 16.60

A presumption that the prescribed information wasincorporated 16.61

Material and immaterial differences 16.62

Severance of ineffective clauses 16.65

Rectification of EPAs 16.69

Chapter 17 Onset of Mental Incapacity and Functions of the PublicGuardian

The significance of the onset of mental incapacity 17.1

Attorney’s duties when the donor is becoming mentallyincapable 17.5

Mental incapacity 17.6

Mental disorder 17.7

Incapable of managing his property and affairs 17.10

Becoming mentally incapable 17.16

Early registration is desirable 17.19

The notification requirement 17.20

Power to dispense with notification 17.21

The notice to the donor 17.26

The notice to relatives 17.30

Power to dispense classes of attorney from notificationrequirement 17.31

Who are the specified relatives? 17.32

How many relatives have to be notified? 17.35

Examples of notification requirement 17.38

Effect of the Court of Protection dispensing with notification 17.39

Attorney a specified relative 17.40

Notice must be in the prescribed form 17.41

Service on the donor 17.47

Service on relatives 17.48

Service on a solicitor 17.50

Substituted service 17.51

Duty to give notice to other attorneys 17.53

No time limit 17.54

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The application for registration

Must be made as soon as practicable 17.55

No time limit 17.57

Form of application: EP2PG 17.58

Reasons why EPAs are defective 17.61

Reasons why applications to register are defective 17.62

Functions of the Public Guardian on an application forregistration 17.63

The Public Guardian’s duty to register if the application isformally correct 17.65

The Court of Protection may waive failure to notify relatives 17.66

Circumstances in which the Public Guardian is preventedfrom registering an EPA 17.67

Public Guardian must not register if a deputy has beenappointed 17.69

Valid notice of objection

Time-limits 17.73

Valid grounds for objection 17.74

At this stage it is immaterial whether the grounds areestablished 17.75

Grounds for valid notice 17.76

Notice of objection to registration 17.94

No relative to whom notice has been given 17.96

Appropriate inquiries might produce evidence of a ground forobjection 17.98

Where the application for registration is not accompanied by theoriginal instrument or a certified copy 17.100

Where the Public Guardian receives a notice of objection but thecourt does not receive an application 17.101

Establishing and maintaining a register of EPAs 17.108

Chapter 18 The Scope of the Attorney’s Authority Under anEnduring Power

Introduction 18.1

General authority

The effect of conferring general authority 18.4

What can a donor lawfully do by an attorney? 18.7

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Acting for the donor as an administrator or executor 18.12

General authority over part of the donor’s property andaffairs 18.13

Specific authority 18.15

Omission to delete general or specific authority 18.16

Subject to any conditions or restrictions 18.17

Scope of authority: the Act’s provisions 18.19

Power to provide for people’s needs

Schedule 4, paragraph 3(2) 18.20

Needs 18.22

Might the donor be expected to provide for thatperson’s needs? 18.23

What might the donor be expected to do to meet those needs? 18.25

Re Cameron (deceased) 18.27

The effect of the donor’s incapacity 18.29

Power to make gifts

Schedule 4, paragraph 3(3) 18.30

Power to make gifts is in addition to the power to provide forneeds 18.31

Four conditions must be satisfied 18.32

There must be no restrictions in the instrument 18.33

The timing of the gift 18.34

The recipient of the gift 18.35

The value of the gift 18.37

No need to obtain consent 18.39

Wider authority to make gifts cannot be conferred in the EPA 18.40

The effect of registration on the power to make gifts 18.41

The attorney’s authority and power at the onset ofdonor’s incapacity 18.42

Restricted powers pending registration 18.43

Authority only restricted when mental incapacity established 18.47

No power to make gifts pending registration 18.48

The attorney may not disclaim without notifying the PublicGuardian 18.49

The attorney’s authority and powers when the power is regis-

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tered

The attorney may act under power 18.50

The attorney cannot rely on the donor’s further authorisation 18.51

The attorney may apply to the Court of Protection 18.53

Gifts when the power is registered 18.54

Acting in the donor’s best interests 18.56

Guidance within the Code 18.57

Chapter 19 The Court of Protection and Enduring Powers ofAttorney

The Court of Protection 19.1

No jurisdiction to review decisions of the Public Guardian 19.3

Functions prior to registration

Determining validity of power 19.4

Dispensing with the requirement to give notice of the attor-ney’s intention to apply for registration 19.7

Functions on application for registration 19.9

Functions with respect to registered powers 19.10

The Court’s functions after registration

The court’s functions 19.11

Wills 19.12

Cancellation of a registered power 19.14

Confirmation of donor’s revocation 19.15

Exercise of powers under sections 16 to 20 19.16

Donor mentally capable 19.19

The power has expired or been revoked by the incapacity ofthe attorney 19.22

Power not valid at the time of registration 19.26

Fraud or undue pressure 19.27

Attorney unsuitable 19.28

Delivering up the instrument to be cancelled 19.29

Court of Protection procedure

Introduction 19.30

Obtaining the forms 19.31

COP 8: Application relating to the registration of an enduringpower of attorney (EPA) 19.33

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Practice Direction 9H 19.36

Third party objection to registration applications to the court 19.37

Other applications 19.38

Issue of application form to object to registration 19.39

Service of documents 19.41

Certificate of service 19.45

Responding to the application 19.46

Dealing with applications 19.47

Reconsideration of orders made without a hearing 19.51

Decision to hold an attended hearing 19.53

COP 28: Notice of hearing 19.54

Hearings 19.56

Notifying the donor of the final order 19.60

Chapter 20 Revocation, Disclaimer and Termination of EnduringPowers

Introduction

The common law 20.1

The policy of the legislation 20.2

Revocation 20.4

Automatic revocation 20.5

Revocation by act of the donor 20.6

A later EPA does not necessarily revoke an earlier one 20.11

Capacity to revoke an EPA 20.13

Revocation by the court 20.20

Disclaimer 20.21

Notice to the Public Guardian required after onset ofincapacity 20.24

Right to disclaim is preserved 20.25

Termination by operation of law 20.26

Termination by effluxion of time 20.32

Chapter 21 Appointment of More Than One Attorney

Introduction

Appointments under ordinary powers 21.1

Application to enduring powers 21.3

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Only joint or joint and several appointments permitted

Appointment of substitute attorneys 21.4

Attorneyship cannot run with title 21.9

A way of providing for a succession of attorneys 21.10

Joint attorneys 21.13

Time when attorney must satisfy conditions as to age andsolvency 21.15

Substitute attorneys 21.18


Valid grounds of objection 21.21

Powers of the court once the power is registered 21.22

Powers of the Public Guardian once the power is registered 21.23

Joint and several attorneys 21.25

One attorney failing to satisfy qualifications for appointment 21.26

Registration procedure 21.27

Objections to registration not applying to all joint and severalattorneys 21.31

Revocation not applying to all joint and several attorneys 21.32

Prescribed form of qualification of registration 21.33

Bankruptcy of attorney 21.34

Disclaimer 21.38

Attorney’s liability for wrongs of co-attorney 21.39

Chapter 22 Protection of Third Parties

Introduction

Consequences of revocation - the common law 22.1

Protection – the Powers of Attorney Act 1971 22.2

Application of 1971 Act to enduring and lasting powers 22.3

Protection for innocent attorney 22.4

Protection for innocent third party 22.5

What constitutes knowledge of revocation of enduring orlasting power? 22.6

Presumption that third party had no knowledge 22.7

Further protection under the Mental Capacity Act 2005 inrespect of enduring powers 22.8

Where the instrument fails to create an enduring power 22.9

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Protection where the attorney’s powers are restricted pendingregistration 22.10

Protection where the donor never had capacity to grant apower of attorney 22.14

Further protection under the Mental Capacity Act 2005 inrespect of lasting powers 22.17

Protection for the attorney 22.18

Protection for a third party 22.19

Presumption in favour of validity 22.20

Chapter 23 The Code of Practice

Introduction 23.1

Mental Capacity Act 2005 Code of Practice 23.10

Deprivation of Liberty Safeguards Code of Practice 23.13

The purpose of the code 23.15

The contents of the code 23.16

The chapters of the code 23.18

People who have a duty to have regard to the code 23.35

Chapters that attorneys need to be aware of 23.40

Failure to comply with the code 23.44

The Munjaz case 23.46

Possible reasons for departing from the code 23.50

Case-law on the MCA 2005 Code of Practice 23.51

Revising the code 23.52

Research relating to the code 23.56

Conclusion 23.57

Chapter 24 Private International Law

Introduction 24.1

The Hague Convention on the International Protection ofAdults 24.3

Status of the Hague Convention in England and Wales 24.7

Distinction between protective measures and powers ofrepresentation 24.14

Powers of representation 24.19

Exercise of powers of representation 24.29

Case-law 24.36

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Conclusion 24.44

Appendix A Statutes A1

Powers of Attorney Act 1971 A1

Trustee Delegation Act 1999 A2

Mental Capacity Act 2005 A3

Appendix B Statutory Instruments B1

Lasting Powers of Attorney, Enduring Powers of Attorney andPublic Guardian Regulations 2007 B1

Court of Protection Rules 2007 B2

Appendix C Lasting Power of Attorney Forms C1

LP1F: Financial decisions C1

LP1H: Health and care decisions C2

LPC: Continuation sheets C3

LP2: Register your LPA C4

LP3: Form to notify people C5

LPA 003A: Notice to an attorney of receipt of an application toregister a lasting power of attorney C6

LPA 003B: Notice to donor of receipt of an application toregister a lasting power of attorney C7

LPA 004: Notice of registration of lasting power of attorney(property and financial affairs) C8

LPA 005: Disclaimer by a proposed or acting attorney under alasting power of attorney C9

LPA 006: Objection by the donor C10

LPA 007: Objection to the Office of the Public Guardian of aproposed registration of a lasting power of attorney on factualgrounds C11

LPA 008: Notice to the Office of the Public Guardian of anapplication to object to registration of a lasting power ofattorney made to the Court of Protection C12

Appendix D Enduring Power of Attorney Forms D1

EPA: Prescribed form of Enduring Power of Attorney D1

EP1PG: Notice of intention to apply for registration of anenduring power of attorney D2

EP2PG: Application for registration of an enduring power ofattorney D3

Appendix E Court Forms E1

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0038 [ST: 1] [ED: m] [REL: 8] Composed: Tue Oct 3 05:15:35 EDT 2017



E1 COP 7: Application to object to the registration of a lastingpower of attorney

E2 COP 8: Application relating to the registration of an enduringpower of attorney

Appendix F Guidance F1

Mental Capacity Act 2005 Code of Practice F1

What does the Act say about Lasting Powers of Attorney? F1

Quick summary F1

What is a Lasting Power of Attorney (LPA)?

How does a donor create an LPA?

Who can be an attorney?

How should somebody register and use an LPA?

What guidance should an attorney follow?

What decisions can an LPA attorney make?

Are there any other restrictions on attorneys’ powers?

What powers does the Court of Protection have over LPAs?

What responsibilities do attorneys have?

What duties does the Act impose?

What are an attorney’s other duties?

How does the Act protect donors from abuse?

What happens to existing EPAs once the Act comes intoforce?

Practice Direction 9H: Applications relating to the registrationof enduring powers of attorney F2

General F2

Applications to which this practice direction applies

Objections to registration

Procedure for applications to which this practice directionapplies

Practice Direction 23A: Request for directions where notice ofobjection prevents Public Guardian from registering enduringpower of attorney F3

Appendix G Case Reports

Re K; Re F (Enduring Powers Of Attorney) G1

Re R (Enduring Power Of Attorney) G2

Re W (Power Of Attorney) G3

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The first ground: invalidity due to lack of capacity

The second ground: unsuitability

The gifts

Hostility

Re W (Enduring Power Of Attorney) G4

Re E (Enduring Power Of Attorney) G5

Introduction

Issue 1: was the 1992 power revoked by the 1997 power?

Issue 2: suitability of the attorneys

Re C (Power Of Attorney) G6

The background to the proceedings

The proceedings so far

The statutory framework

The objections

The medical evidence

The hearing on 13 May 1999

The order of 1 December 1999

The way forward

Re F (Enduring Power of Attorney) G7

Re J (Enduring Power of Attorney) G8

Appendix 1

Appendix 2

Re FH; M v Public Guardian G9

Statutory provisions considered

The facts

Decision

Re A; D V B G10

The background

The objection

Application by the Public Guardian under r 201

Application for reconsideration

Mrs A’s estate

The law relating to the unsuitability of an attorney

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Decision

Re Collis G11

Re J G12

Introduction

History of the application

The hearing

The live issues

The evidence

My decisions

SRA investigation

Costs

Liabilities

Client files

Litigation conduct and integrity

Conflict of interest

Independence

Conclusion – Order and other terms and conditions

Re Putt G13

Introduction

Decision on the eligibility of the certificate provider

Decision on the delegation clause

Re Buckley: The Public Guardian v C G14

The background

The general visitor’s report

The application

The special visitor’s report

Yun Ding’s second witness statement

The attorney’s response

The hearing

The law relating to applications of this kind

The investment of funds by an attorney

Decision

Appendix H Severance Decisions Made by the Court – LastingPowers of Attorney Cases

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Severance of restrictions incompatible with an LPA H1

Severance of restrictions incompatible with a Health andWelfare LPA H2

Severance of restrictions relating to life-sustaining treatment H3

Severance of restrictions incompatible with a Property andFinancial Affairs LPA H4

Severance of restrictions incompatible with a joint and severalappointment H5

Severance of restrictions incompatible with a joint appointment H6

Severance of restrictions incompatible with an appointment toact jointly in some matters and jointly and severally in others H7

Severance of restrictions fettering an attorney’s authority H8

Severance of invalid restrictions as to when a replacementattorney may act H9

Attorney or replacement attorney under 18 H10

Severance of invalid restrictions as to how a replacementattorney may act H11

Survivor of original joint appointment cannot act withreplacement H12

Severance of invalid restrictions relating to gifts H13

Severance of unreasonable, impractical or uncertain conditions H14

Whether the instrument is in prescribed form H15

Appointment of office holder as attorney H16

Whether the instrument has been correctly executed H17

Attorney’s date of birth missing H18

Donor’s surname missing H19

Attorney or replacement attorney as a ‘named person’ H20

Eligibility of certificate provider H21

Replacement for replacement attorney H22

Appointment of substitute by an attorney H23

Where attorney present when certificate provider interviews thedonor H24

Capacity to make an LPA H25

Enduring powers of attorney cases H26

Severance of restrictions incompatible with an EPA H27

Severance of restrictions incompatible with a joint and several

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appointment H28

Severance of restrictions incompatible with a joint appointment H29

Severance of restriction fettering attorney’s authority H30

Capacity to revoke EPA: test is not the same as for creationof LPA H31

Appendix I Law Society Practice Notes

Lasting powers of attorney I1

Meeting the needs of vulnerable clients I2

Access to and disclosure of an incapacitated person’s will I3

Index

Contents

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