To what extent can you nominate successive attorneys to look after your health & wellbeing or your property and affairs if you lack capacity in the future? What if your preferred choice(s) may be unavailable – can you nominate a succession of replacement attorneys in order of preference?
Sections 9 and 10 of the Mental Capacity Act 2005 (MCA 2005) provide for the making and registration of Lasting Powers of Attorney (LPAs).
What is a LPA?
S 9 (1) MCA 2005 states that a LPA is: -
“a power of attorney under which the donor (“P”) confers on the donee (or donees) authority to make decisions about all or any of the following –
(a) P's personal welfare or specified matters concerning P's personal welfare, and
(b) P's property and affairs or specified matters concerning P's property and affairs,
and which includes authority to make such decisions in circumstances where P no longer has capacity.”
A LPA is only made if the appropriate formalities are complied with, and, at the time it was made (as opposed to registered), P had capacity.
Registration of the LPA
Once the LPA is made, there is no requirement to register it, but if it is not registered when P still has capacity, then mistakes may cause it to fail. This would then mean that an application would have to be made to the Court of Protection, pursuant to s 16 MCA 2005, either for the court to make a particular decision on P’s behalf, or for the court to appoint a deputy. Either can be time-consuming, can cause delay and can be expensive.
The Office of the Public Guardian (“OPG”) reports a significant increase in applications in recent months: a 34% increase from the 295,000 in 2013 / 2014 to the 394,000 in 2014 / 2015, and so it is important that lawyers are on top of the kinds of difficulties that may present themselves when drafting LPAs.
However, the law with respect to the appropriate formalities is not entirely straightforward, and, as can be seen from the decision of Senior Judge Lush in Public Guardian v Boff 2013 WTLR 1349, considered below, the issue of who can replace P’s first choice of attorney may require some carefully considered drafting.
So, what steps need to be taken to ensure that the creation of the LPA is effective?
Briefly, ss. 9 and 10 of the MCA 2005, in conjunction with Schedule 1, and The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007, as amended by SI 2015/899, set out the formalities for the creation of a LPA.
Donees need to be 18 or over, and in the case of property & affairs LPAs, not bankrupt or subject to debt relief orders. In the case of attorneys for property and affairs, the attorney may also be a trust corporation.
If there is more than one donee of the LPA, then they may be appointed to act (a) jointly, (b) jointly and severally, or (c) jointly in respect of some matters and jointly and severally in respect of others. If the instrument appointing the donee is unclear as to (a) or (b) then the statute directs the cautious approach that the appointment will be considered to be an appointment to act jointly.
Schedule 1 to the MCA 2005 contains some formal detail and provides for regulations to be made by the Lord Chancellor as to any finer points. The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007, as amended by SI 2015/899, dictates the content of the appropriate forms.
Since 1 July 2015 the forms have changed slightly. Property & Affairs is covered by the revised Form LP1F, and Health & Welfare by the new Form LP1H. They can be found here (http://tinyurl.com/mwbckn8). The leaflet LP12 on the same page provides useful guidance as to how to complete the forms which it is not necessary to repeat here.
If the instrument differs in an immaterial respect in form or mode of expression from the prescribed form, the Public Guardian will still consider it valid. Instruments not in the prescribed form may also be directed by a court to be treated as if they were, so long as the court is satisfied that the persons executing the instrument intended it to create a lasting power of attorney (MCA 2005, Sch 1 r 3).
MCA 2005 Schedule 1, § 11 empowers the court to sever any provisions in a LPA that would render it ineffective.
Replacement Attorneys – a potential problem
It is often prudent to provide for replacement attorneys. The life of an LPA may extend for decades, and an infinite number of unforeseen eventualities can arise in the time which may elapse before the LPA is required.
The statutory provision which permits a donor to nominate a replacement is s.10(8) MCA 2005 which reads as follows:
“An instrument used to create a lasting power of attorney –
(a) cannot give the donee (or, if more than one, any of them) power to appoint a substitute or successor, but
(b) may itself appoint a person to replace the donee (or, if more than one, any of them) on the occurrence of an event mentioned in section 13(6)(a) to (d) which has the effect of terminating the donee’s appointment.”
Dr Ruth Boff and her husband each appointed the other as his/her sole attorney. Each of them then appointed three successive replacement attorneys, each of whom was also to act on a sole basis if the prior attorney in the line of succession could not or would not act. Dr Boff and her husband each stipulated on their respective property and affairs LPA forms:-
“It is my intention and direction that my first named replacement attorney should act alone and only if he does not wish to act or is permanently unable to act then my second named replacement attorney should act alone and only if he also does not wish to act or is permanently unable to act, then my third replacement attorney should act alone.”
This stipulation, said Dr Boff, arose from her own experience as an attorney with “joint and several” powers, to the effect that many financial institutions incorrectly insisted on the signature, and sometimes even the presence, of all the attorneys, thus causing considerable practical difficulties.
The OPG insisted that “replacement attorneys cannot replace other replacement attorneys” and refused to register the LPAs. It relied on § 7.22 of the Law Commission report no. 231 “Mental Incapacity” and also two Law Commission Consultation papers, which the OPG said indicated that there was no intention to propose any wider provision enabling a replacement attorney to replace an attorney who was not an original attorney. Furthermore, reliance was placed upon § 4.38 of Cretney & Lush on Lasting and Enduring Powers of Attorney (6th edition, 2009), which stated that there was a prohibition on replacing replacement attorneys.
The Boffs contended that nothing in the MCA 2005 precluded successive appointments, that the legislation had a clear meaning, and that “concentrating on the specific language used in a pre-legislative report to limit the workings of a statute is not a sound approach to legislative interpretation” (§ 19). They bemoaned the silence in the Law Commission report no. 231 as to whether replacing replacement attorneys would cause any problems, and pointed out some obvious impracticalities if attorneys died before they were called upon to act in, say, 30 years time.
Decision of Senior Judge Lush
The matter was decided by the court on 16 August 2013. The court noted the statutory force of the prescribed LPA form itself.
The court decided that s 10 (8) (b) MCA 2005 was ambiguous, contrary to the submissions of the Public Guardian. It was unclear whether a donor could direct that a replacement attorney could replace a prior replacement attorney.
The court noted the guidance of Lord Griffiths in Pepper v Hart  A.C. 593 that it was acceptable to refer to “extraneous material that bears upon the background against which the legislation was enacted” in cases where the statutory language was ambiguous. The judge pointed out that it was a striking feature that both the 1983 and 1995 Law Commission reports which led ultimately to the enactment of the MCA 2005 failed to mention the question of a replacement attorney for a replacement attorney. Only the question of the replacement of an original attorney was discussed.
Taking into account the Law Commission reports as well as the scheme as a whole, the OPG guidance and the wording of the prescribed forms, the court held that “a replacement attorney can only replace an original attorney and cannot replace a replacement attorney” (§ 46).
The OPG’s suggestion that Dr Boff could appoint joint and several attorneys coupled with non-binding guidance in the form of a wish that they should act in turn was rejected.
The judge suggested that in order to achieve what she had originally intended Dr Boff would have had to make two LPAs. The first LPA would appoint an original attorney to act as sole attorney, and the first replacement attorney. The second LPA would appoint the second replacement attorney (who would, of course, for the purposes of that LPA be an original attorney) and then the third replacement attorney (who would be a replacement for an original attorney, at least for the purposes of the second LPA). All of the attorneys would be sole attorneys. The second LPA would be conditional upon the first LPA having ceased to be operable for any reason. He suggested that there would be no immediate need to register the second LPA if Dr Boff was concerned about having to pay two registration fees up front. It is the view of the authors, however, that in order to retain control over the appointments rather than simply trust that the second LPA would be registered some, or perhaps many years later, it would be prudent to register both LPAs at the same time.
Other potential problems in providing for replacement attorneys
The judge pointed out that
- The application to register the first LPA would not warn the relevant named persons of the identity of the replacement attorneys, but only the original attorneys;
- There is no formal registration process for replacement attorneys and there is no facility for any of the relevant named persons to object to the appointment of a replacement attorney;
- Replacement attorneys are really only viable where the donor appoints a sole original attorney or more than one original attorney to act jointly and severally because: -
- If a replacement attorney replaces an original attorney who has been appointed to act jointly, the outcome is unlikely to be what the donor intended. For example, if A and B were to act jointly, with C to act as a replacement attorney, then A’s bankruptcy, death or disclaimer would terminate A and B’s joint appointment, and C would become the sole attorney. B would be removed as an attorney by operation of law which would not be what the donor intended.
A number of difficulties are mentioned in Section A4 of the leaflet LP12 but there is no warning on the actual prescribed form. We consider that clients will need to have such problems carefully explained so that it is clear to them precisely who is to have power of attorney, and in what circumstances that will end, or, as the case may be, commence. This is by no means a straightforward area. It is possible that there may be further case law to guide practitioners in future, but in the meantime there is no substitute for careful and considered advice and explanation.