Re Public Guardian’s Severance Applications
In Re Public Guardian’s Severance Applications  EWCOP 24, the Office of the Public Guardian brought an application involving nine consolidated cases presenting interpretative questions relating to statute and regulations which have had recurred with sufficient frequency to cause the Public Guardian to seek clarification. In his judgment, Hayden J made clear that was the wording of the MCA 2005 which must prevail, not the wording used on the forms prescribed in Regulations – but emphasised that it was self-evidently a recipe for confusion where the forms posed a different question to that posed by the Act.
Hayden J noted that the question of whether it was lawful to give primary power to one attorney ahead of other attorneys when appointed on a joint and several basis had been comprehensively resolved in Re DA  Fam 27. Hayden J endorsed the practice of the Public Guardian of applying for severance where there is an instruction for a primary/original attorney with others unable to act (save where the primary attorney ceases to do so).
Hayden J made clear that it was not possible to read s.10(4) Mental Capacity Act 2005 as rendering it lawful to have joint and several appointments with instructions for attorneys to deal with separately defined areas of the donor’s affairs or include restrictions to this effect. He considered that s.10(4) was strikingly short, succinct, and clearly intended, unambiguously, to be exhaustive. A ‘purposive’ interpretation would require, in effect, a significant rewriting of the statutory provision and offend each of the conventional principles of statutory construction. Further, given the practical challenges involved in dividing personal and business responsibility for the donor’s estate, the need for separate LPAs would, in fact, provide a clearer and more effective route for the donor, requiring, of necessity, a more intense focus on the specific duties and obligations involved in each and a concentration on their ultimate feasibility. Hayden J was not persuaded that a wider interpretation would be either purposive or beneficial.
Hayden J confirmed that severance applications should continue to be made in relation to instruments that sought to instruct multiple (original or replacement) attorneys to act on a majority basis. He held that the ‘majority rule’ provision was inconsistent with the statutory provision. The provisions of s.10(4) MCA 2005 were drafted so tightly that they left very little, if any, scope for a purposive approach to the contrary. He noted that he was, however, sympathetic to the frustration effervescing in the judgment in Re Public Guardian’s Severance Applications  EWCOP 10 as to the cumbersome and legally unattractive position that resulted.
Hayden J made clear that whether the word ‘should’ or similar words used in an LPA instrument should be understood as constituting a binding instruction or a non-binding preference on the part of the donor was a highly fact specific question and its significance and force will be dependent on context. However, he confirmed that its use would not automatically give rise to severance. It was the wording on the forms that generates the ambiguity.
Hayden J found that there was an inherent ambiguity in s.10(8)(b) MCA 2005. He considered that an interpretation which permitted the appointment of a secondary replacement attorney was to be preferred, and noted that he considered that Senior Judge Lush’s decision to the contrary in Re Boff (2013) MHLO 88 had focused rather too heavily on the pre-legislative material. The alternative question of whether a replacement attorney could be reappointed to act solely was therefore otiose. Had it been necessary to resolve it, however, Hayden J made clear that he would have concluded that such a reappointment could be made, for the same reasons as in relation to the potential for the appointment of a second replacement attorney.
Hayden J recognised that, insofar as aspects of the court’s analysis might raise the prospect of the need for legislative amendment, the practical and political reality was such that it would not be possible in the near future. However, the clarifications required to the LPA forms did not provide quite the same difficulties. He made clear that he considered that the amendments that they required were limited in scope and ought easily to be manageable. In many respects, he observed, they would serve to complete the constructive work that had already been done.