OPG v PGO, MAB, MJD

Summary

P had executed 2 LPAs, one welfare, one property and affairs, but the signature of P was witnessed by one of the proposed attorneys.

The LPA was registered but the OPG did not notice the defect. By the time a financial institution did, P had lost capacity to make new LPAs.

The OPG, therefore, made an application for a declaration as to whether the requirements for the creation of an LPA had been met and a direction as to whether the registration of the LPAs should be cancelled.

Section 9(2)(b) MCA requires an LPA to have been made in accordance with the requirements of schedule 1 of the Act. Section 9(3) provides that if the LPA is not so made it confers no authority.

Schedule 1 requires regulations concerning execution to be satisfied. Regulation 9(8)(b) of the Lasting Power of Attorney, Enduring Power of Attorney and Public Guardian Regulations 2007 provides that a donee may not witness any signature required for the power apart from that of another donee.

It was clear, therefore, that as one of the donees had witnessed P's signatures, the regulations had not been satisfied. SJ Hilder held that the regulations were mandatory and, as a consequence, she had no choice but to direct the cancellation of the registration of the LPAs (paragraph 17 of the judgment).

SJ Hilder reached her conclusion with regret o the facts of the case before her. She noted that:

19. In the absence of attorneys to manage her property and affairs, the Court may appoint a deputy or deputies. In making such an appointment, the Court will take into account all that is known of BGO's wishes and feelings in respect of who she would like to assist her, as demonstrated by the attempt to grant LPAs and otherwise.
20. In respect of health and welfare, the Court may also appoint a deputy or deputies if considered appropriate, although it does so much more rarely. However, pursuant to section 20(5) of the Mental Capacity Act 2005, a deputy cannot be given powers to refuse consent to the carrying out or continuation of life-sustaining treatment. In her welfare instrument, BGO had ticked the box to confirm that she wanted to give her attorneys this power. On the failure of her LPA, there is no means for the Court to give effect to her wishes in this respect.

SJ Hilder was mindful of authorities (such as Miles & Beattie v The Public Guardian [2015] EWHC 2960, Wye Valley NHS Trust v Mr B [2015] EWHC 60, Briggs v Briggs [2016] EWCOP 53 and The Public Guardian v DA & Others [2018] EWCOP 26) which together emphasise the empowering intention of the Mental Capacity Act 2005 and the "underlying principle that respect must be given wherever possible to the donor's autonomy" ( Baker LJ in PG v DA at paragraph 47), and that the mandatory nature of Schedule 1 paragraph 18, particularly where it had the consequences it did for P "may appear to run in the opposite direction."  However, SJ Hilder concluded (at paragraph 21) that:

it should be borne in mind that Lasting Powers of Attorney are powerful documents and inevitably therefore there will be those who seek to obtain powers wrongfully. There is no suggestion of such wrongful intent in the matter currently before me but, in different circumstances, insistence on an independent witness to the Donor's signature is itself an important safeguard for the expression of genuinely autonomous decisions.  

Comment

It is, to put mildly, unfortunate that the OPG did not notice the fundamental defect in the powers of attorney at the point of registration, as the consequences for P were ultimately that she has been deprived the opportunity of empowering an attorney to act on her behalf in relation to decisions in relation to life-sustaining treatment, a matter about which she clearly felt sufficiently strongly to seek to give her attorney that power.