The Court of Protection considers the differences between Lasting Powers of Attorney covering Property and Financial Affairs and Health and Welfare Matters

 

 

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