Mental Capacity Case

Re Public Guardian’s Severance Applications

Hayden J

Lasting Powers of Attorney – construction – whether commonly appearing provisions required severance 

The Office of the Public Guardian brought an application involving nine consolidated cases presenting interpretative questions relating to statute and regulations which had recurred with sufficient frequency to cause the Public Guardian to seek clarification.

Held – determining each of the questions – 

(1) It was the wording of the Mental Capacity Act 2005 which must prevail, not the wording used on the forms prepared by the Office of the Public Guardian.  It was self-evidently a recipe for confusion where the forms posed a different question to that posed by the form (Re Public Guardian’s Severance Applications [2017] EWCOP 10 and Re DA [2019] Fam 27 considered) (see para [34]).

(1)  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 [2019] Fam 27. The court 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) (Re DA [2018] EWCOP 26 applied) (see para [39]).

(2) It was not possible to read s.10(4) MCA 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.  Section 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. The court was not persuaded that a wider interpretation would be either purposive or beneficial (Miles & Anor v The Public Guardian [2015] EWHC 2960 (Ch) considered) (see para [41]).

(3) 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.  A ‘majority rule’ provision was inconsistent with the statutory provision. The provisions of s.10(4) were drafted so tightly that they left very little, if any, scope for a purposive approach to the contrary.   The court was, however, sympathetic to the frustration effervescing in the judgment in Re Public Guardian’s Severance Applications [2017] EWCOP 10 as to the cumbersome and legally unattractive position that resulted (Re Public Guardian’s Severance Applications [2017] EWCOP 10 and Re DA [2019] Fam 27 considered) (see para [46]). 

(4) Whether the word ‘should’ or similar words 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 would be dependent on context.  However, its use would not automatically give rise to severance. It was the wording on the forms that generated the ambiguity (see para [46]). 

(5) There was an inherent ambiguity in s.10(8)(b) MCA 2005.  An interpretation which permitted the appointment of a secondary replacement attorney was to be preferred, Senior Judge Lush’s decision to the contrary in Re Boff (2013) MHLO 88 having focused rather too heavily on the pre-legislative material. The alternative question of whether a replacement attorney can be reappointed to act solely was therefore otiose. Had it been necessary to resolve it, the court 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 (Re Boff (2013) MHLO 88 distinguished) (see paras [51]-][53]). 

(6) Insofar as aspects of the court’s analysis might raise the prospect of the need for legislative amendment, the court recognised that 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. The amendments that they required were limited in scope and ought easily to be manageable. In many respects, they would serve to complete the constructive work that had already been done (see para [54]).  

Statutory provisions considered

  • Mental Capacity Act 2005, ss 9, 10, 11, 22, 23, 57, 58,  
  • Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 (SI 2007/1253)

Cases referred to in judgment

Neil Allen (instructed by the Public Guardian) for the Public Guardian
Ruth Hughes (instructed by the Official Solicitor) as Advocate to the Court

Full judgment available on The National Archives database here.

Reported by Alex Ruck Keene KC (Hon)