Judge: Court of Protection (Senior Judge Lush)
Citation:  EWCOP 35
In this case the Senior Judge was faced with the Public Guardian’s refusal to register a LPA because of the conditions that the donor had imposed to regulate its use. The donor, who retained capacity, applied for its registration.
The conditions, which were intricate (and reproduced in the Schedule to the judgment), had the aim of ensuring that decisions could only be made pursuant to the power when the donor clearly lacked capacity.
The Public Guardian objected on the basis that within the meaning of paragraph 11 of schedule 1 of the MCA, the provisions in question would be ineffective as part of a LPA and would prevent the instrument from operating as a valid LPA.
The provisions required (amongst other matters) 2 psychiatrists’ opinions and the approval of a Protector before the power could be used.
The Senior Judge dismissed the Public Guardian’s concerns holding at paragraph 39 that the Public Guardian could only refuse to register a LPA if the provision could not take effect according to its legal terms as part of a LPA, for example a term giving voting rights to the attorney.
If the term could take effect legally, then the Public Guardian had to register the power, if not, he had to apply to court under s.23 MCA 2005 for the court to determine the issue (see paragraph 41).
This was so even if the term made the power of much more limited practicality and the Senior Judge pointed out that in the new form, in effect 1 July 2015, below the tick box that allows the donor to specify that the power is only exercisable when the donor lacks capacity to make the decision, there is a warning that adopting that course might make the power less useful because of the potential need to prove incapacity when it is used.
As Senior Judge Lush noted at the outset, this was a judgment for which permission would not normally be given for publication, but although he could not imagine “that the general public would have the slightest interest in this judgment, but its publication may be of interest to professionals who specialise in this area of the law and draft LPAs on a regular basis, and also to people who are considering making an LPA themselves, and for this reason I shall permit its publication.”
The judgment is, indeed, of interest because the OPG can only refuse to register a LPA if, properly analysed, it is truly ineffective. If individuals wish to set in place complex arrangements to secure compliance with their wishes, this judgment confirms that they can do so.