SAD and ACD v SED

Summary

This is the first post-MCA case to consider the issue of capacity to revoke a lasting power of attorney ('LPA').[1] SED decided with capacity to appoint her daughters, SAD and ACD (as well as her mother), under a property and financial affairs LPA. The evidence suggested that this was to guard against the financial consequences of hypomania resulting from her bipolar disorder. Eighteen months later she signed a deed to revoke the LPA. This decision was challenged by her daughters on the basis that their mother lacked capacity to make that revocation decision, and they were concerned to prevent the sale of her property in England.

According to s.13(2) MCA 2005, P may at any time revoke their LPA when s/he has capacity to do so. The evidence was disputed. The solicitor, in whose presence the deed was signed, believed she had capacity at the time. A consultant neuropsychiatrist instructed months later believed to the contrary. Building on the unreported case of Re S (13 March 1997), DJ Glentworth held that the information relevant to a decision to revoke was:

1. Who the attorneys are;
2. What authority they have;
3. Why it is necessary or expedient to revoke the power;
4. The foreseeable consequences of revoking the power;
5. The reasons for the original decision to appoint the attorneys.The court held, on a fine balance, that the mother lacked capacity to revoke the LPA. In particular, at that time she was unable to use or weigh information as to why it was expedient or necessary to revoke it, nor properly to consider her current wishes and weigh them against her purpose in signing the LPA in the first place.Turning to s.22(3) MCA 2005, the issue was then whether the court ought to revoke it. This was an option if the court was satisfied that the daughter(s) had behaved, or proposed to behave, in a way that contravened their authority or was not in their mother's best interests. There was no evidence of contravention. And, in terms of best interests, the court focused on the harm that was arising from the attorneys not giving effect to their mother's current wishes and feelings; that is, the very thing their mother wanted to safeguard against. In those circumstances, the court revoked the LPA and appointed a financial deputy.

This is a useful decision as it sets out the information relevant to a decision by the donor to revoke an LPA. Our one note of caution relates to the court's approach to revocation under s.22(3) MCA 2005. It appears to us that the issue is not whether revocation is in P's best interests, but whether the attorneys' behaviour has or would contravene P's best interests. It is a fine, but important distinction.

An interesting feature of the judgment is the way in which the court sought to wrestle with P's past wishes and feelings (relied upon by the daughters in support of the LPA), against her present wishes and feelings (relied upon by P in support of a deputy).   In the instant case, her present wishes and feelings were given priority, but this will not always be the case (see also the discussion in the Briggs v Briggs (2) case note in the Health, Welfare and Deprivation of Liberty section of this Newsletter).   However, on a proper analysis, P's wishes and feelings were relevant insofar as they related to the attorneys' behaviour. In this case, it appears that the daughters' exercise of the LPA would not be in their mother's best interests as they were doing the very thing their mother previously wanted them to do, namely to go against her incapacitated wishes and feelings during a hypomanic episode.

[1] In Re Harcourt, SJ Lush made clear that the CoP can revoke an LPA where the donor lacks capacity to do so, but did not specify the components of the capacity test.