TA v The Public Guardian [2023] EWCOP 63
Background
The recent case of TA v The Public Guardian considers KA, a 92-year-old, who has lived in a care home since 2021. KA has three children: TA who is the appellant in the matter; and two other sons.
KA executed a Lasting Power Of Attorney (LPA) for Property and Affairs in favour of her three children on 5 June 2019. This LPA was revoked on 27 July 2020 by KA and by deed of revocation.
KA then made an LPA on 12 January 2021 for Property and Affairs and the same was registered with the public guardian on 16 March 2021. KA then made an LPA for Health and Welfare on 1 April 2021 and the same was subsequently registered on 22 June 2021. Both newly executed LPAs by KA appointed TA as sole attorney. The certificate provider for both LPAs was X, who is the ex-mother in law of TA and a close family friend of KA.
In September 2021, HC who is KA’s son, instructed solicitors in respect of revoking the LPAs previously registered in TA’s favour and to execute new LPAs in favour of all three of KA’s children.
The solicitor appointed by HC attended on KA and formed the opinion that KA lacked the capacity to execute new LPAs. Following this, the OPG undertook an investigation in respect of the LPAs, which resulted in the LPAs being suspended by order of DJ Grosse on 30 June 2022. During the investigation, the OPG investigated X, the certificate provider, who said KA had not been pressured. However, upon a COP supervisor visiting KA, it was found that KA had no idea why TA had been appointed as sole attorney.
The judge in the first instance found that X had not provided the required evidence to satisfy the requirements of paragraph 2 of Sch 1 of the Mental Capacity Act 2005 (MCA).
TA appealed the decision in respect of the LPAs. The appeal was refused and the previous judgment stating the LPAs were invalid was deemed to be correct. Statutory interpretation was applied in the case and the judge stated with reference to paragraph 2(1)(e) Sch 1 of the MCA that:
“Therefore, on a pure black letter law approach, a valid certificate must be based on an opinion as to those three matters. If the evidence showed that the certificate provider did not have such an opinion because, for example, they had not spoken to the donor, then there would not be a valid opinion.”
Paragraph 2 of Sch 1 of the MCA 2005 provides:
(e) “a certificate by a person of a prescribed description that, in his opinion, at the time when the donor executes the instrument—
(i) the donor understands the purpose of the instrument and the scope of the authority conferred under it,
(ii) no fraud or undue pressure is being used to induce the donor to create a lasting power of attorney, and
(iii) there is nothing else which would prevent a lasting power of attorney from being created by the instrument.”
Comment
This case highlights the importance of the duties of the certificate provider when executing an LPA and confirms the importance of the procedure to ensure the LPA has been validly entered into.
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Faye Henderson is a Trainee Solicitor at Nelsons.
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