Court Of Protection Considers Past Capacity & Cancels The Registration Of A Lasting Power Of Attorney

In The Public Guardian v RI and others [2022] EWCOP 22, the Court of Protection decided that an individual with learning disabilities and a diagnosis of chronic schizophrenia lacked the capacity to execute a Lasting Power of Attorney (LPA) in 2009, 13 years previously, and ordered that the registration of the LPA be cancelled.

The Public Guardian v RI and others

Background

This case concerns RD, a 60-year-old male who permanently resides at a care home.

In 2009, RD prepared an LPA which appointed his two brothers and mother to be his attorneys in respect of his property and financial affairs.

The Public Guardian became concerned that RD did not have the requisite capacity under Section 9 (2)(c) of the Mental Capacity Act 2005 (MCA) to create the LPA and so made an application to the Court of Protection.

Whilst RD’s two brothers did not dispute that RD no longer had the capacity to revoke the existing LPA or to execute a new one, they argued that he did have capacity at the time he created the LPA. It was their view that the legal executive (present at the time the LPA was executed) sufficiently assessed RD’s capacity at that time and it is since then that RD has deteriorated significantly due to a number of external factors.

Key considerations

The Court exercised its power under Section 22 (2)(a) MCA and considered whether, at the time of execution, RD had the capacity to execute the LPA. If so, the requirements for the creation of an LPA would be met.

However, if the answer to that question is ‘no’, no authority would have ever been conferred on the appointed persons (i.e. RD’s two brothers and mother) and it would follow that the LPA is and was always invalid.

The Court assessed RD’s past capacity and in doing so, placed great importance on the key principles in Sections 1-3 MCA, including the usual starting point; the rebuttable presumption that a person has the capacity to make the decision or do the act in question unless the contrary is established.

In determining past capacity, the Court can be assisted by the following types of evidence:

Court’s decision

In this case, the Court primarily relied upon contemporaneous GP records in and around 2009 and medical evidence provided by a Consultant Old Age Psychiatrist, Dr Ntanda.

The Judge concluded that RD’s learning disability was, and had been, the predominant cause of his difficulties with decision-making.

The Judge preferred the evidence of Dr Ntanda that RD has an impairment in the functioning of his brain which affected him in 2009, at the time the LPA was created.

Dr Ntanda concluded that RD had no understanding of the scope of the attorney’s powers when they could be used and the consequences of not signing the LPA. Furthermore, there was no evidence as to the advice given by the legal executive to RD during their brief meeting at a solicitor’s office in 2009.

Overall, the evidence presented to the Court displaced the presumption of capacity and it was held that RD lacked the capacity to execute the LPA in 2009. The Public Guardian was subsequently directed to cancel the registration of the LPA and for the appointment of a full Deputy.

Comment

This case is a good example of how the Court will weigh up the relevant factors in determining the difficult question of past capacity.

It is clear that in the absence of thorough and detailed note-taking by the legal professionals involved in the drafting or preparation of an LPA, independent medical evidence becomes crucial in determining whether or not an individual had the requisite capacity to execute a formal document, such as an LPA, at the relevant time.