The Court of
Protection recently considered the differences between Lasting Powers of
Attorney (LPAs) covering Property and Financial Affairs and covering Health and
Welfare Matters in the case of Re RM
[2016] EWCOP 25).
Background
to the case
The Donor
set up LPAs covering both Property and Financial Affairs and Health and Welfare
Matters.
He appointed
both his son and daughter as the attorneys of his Property and Financial
Affairs LPA. The appointment was made on a “joint and several” basis meaning
that they could make decisions on their father’s behalf either together or
independently.
The daughter
was appointed as the sole attorney under his Health and Welfare LPA.
After the
powers were set up, serious doubts were raised about the daughter’s ability to
make health and welfare decisions in the best interest of her father. At one point she was absent for a period of
eight weeks.
An
application was made for the partial revocation of the Property and Financial Affairs
LPA, so as to remove the daughter as an attorney of this power so that the son
would become the sole attorney, and for the complete revocation of Health and Welfare
Matters LPA. The Court of Protection (Senior Judge Lush) decided that, although
it was not in the donor's best interest for the daughter to continue to act as
an attorney under the Property and Financial Affairs LPA, it was nevertheless
in the donor's best interest for the daughter to continue to act as attorney under
the Health and Welfare Matters LPA.
In coming
to this decision, the judge pointed to the differences between LPAs covering Property
and Financial Affairs and Health and Welfare Matters. These included:-
1.
A health
and welfare attorney has no authority to make decisions in circumstances other
than those where the donor lacks, or the attorney reasonably believes that the
donor lacks, capacity (section 11(7)(a) MCA 2005). The judge found that
the daughter’s commitment to supported decision-making was such that she would
know when to intervene and make a decision on her father’s behalf.
2.
The vast
majority of personal welfare decisions can be taken informally under section 5
of the MCA 2005, whereas decisions relating to property and financial affairs
tend to be more formal. The judge found that the daughter’s eight week absence made
little or no difference as far as decisions regarding her father's health and
welfare were concerned (either because he could have made the decision himself
or because others could have made the decision for him, under section 5).
However the judge held that the daughter’s absence could have had a detrimental
effect on the administration of her father’s estate, if she had been his only
attorney for property and financial affairs.
If
you are looking for advice on Lasting Powers of Attorney or Court of Protection
matters, please feel free to contact our dedicated Private Client team on 01702
352511 or via email - lhotten@tolhurstfisher.com