IMPORTANT NOTICE

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No: 12555978

Neutral Citation Number: [2014] EWCOP 40
   
COURT OF PROTECTION

MENTAL CAPACITY ACT 2005

First Avenue House
42-49 High Holborn, 
London WC1V 6NP

Date: 4 November 2014

Before:

Senior Judge Lush

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Re MILES 

Between:

	THE PUBLIC GUARDIAN	Applicants	
	- and -		
	MILES and Others	Respondent	
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Fatima Chandoo for the applicant
David Satchell for the respondent

Hearing date: 23 October 2014

JUDGMENT
Senior Judge Lush:

1.	This is an application by the Public Guardian for the court to determine the validity of a provision in a Lasting Power of Attorney (‘LPA’).

2.	Section 23(1) of the Mental Capacity Act 2005 provides that “the court may determine any question as to the meaning or effect of a lasting power of attorney or an instrument purporting to create one.”

3.	I have referred to the donor of the LPA by her surname, rather than by her initials. When the Mental Capacity Act 2005 came into force the Court of Protection and the Office of the Public Guardian (‘OPG’) agreed that decisions involving the validity of a provision in an LPA would be recorded on the OPG’s website using the donor’s surname. In view of the anticipated volume of cases, it was considered that this would be a clearer point of reference than a set of initials.  

The background

4.	Mrs Miles was born in 1937 and lives in Somerset.

5.	On 27 November 2013 she executed an LPA for property and financial affairs and an LPA for health and welfare, in which she:
(a)	appointed her husband and daughter to be her attorneys;
(b)	appointed her son to be a replacement attorney;
(c)	directed the attorneys to act jointly for some decisions and jointly and severally for other decisions (her specific instructions are set out in paragraphs 10 and 11 below) ;
(d)	selected Option A in the LPA for health and welfare, which says “I want to give my attorneys authority to give or refuse consent to life-sustaining treatment on my behalf”;
(e)	imposed restrictions or conditions in each LPA;
(f)	gave guidance to the attorneys;
(g)	did not permit the attorneys to charge for their services; and
(h)	named David John Satchell of Amicuslaw Solicitors, Regional Rural Business Centre, Market Way, North Petherton, Bridgwater, Somerset TA6 6DF as the only person to be notified when an application was made to register the LPAs.

6.	Mr Satchell not only drew up the LPAs but also witnessed Mrs Miles’s signature and acted as the certificate provider.

7.	An application was made to the OPG to register the LPAs and they were registered on 17 June 2014.

8.	The Public Guardian had concerns about the wording of various provisions in the LPAs, but, rather than leave Mrs Miles without the support of an LPA while the matter was being determined by the court, he considered that it would be in her best interests to register the LPAs and then apply to the court for a formal ruling as to whether the provisions were valid.  

The provisions

9.	The provisions which gave the Public Guardian cause for concern were contained in section 4 of both powers of attorney. Section 4 is headed as follows: 

“How you want your attorneys to make decisions

Jointly                                                                                             q
Jointly and severally                                                                       q
Jointly for some decisions, and severally for other decisions        q

Only if you have ticked the last box above, now tell us in the space below which decisions your attorneys must make jointly and which decisions may be made jointly and severally”

10.	Having ticked the last box in section 4 of her LPA for property and financial affairs, Mrs Miles went on to say that:

“My attorneys may act jointly and severally save with regard to: 
1.	any sale of my property at address (or any property which may subsequently replace it); and
2.	any transaction in excess of £10,000

when all surviving attorneys who are capable of acting (whether originally appointed or who have been appointed by and are acting in substitution) shall act jointly insofar as there may be more than one of them able to do so but in the event that there is only one of them capable of acting I expressly re-appoint that attorney to act alone.

My replacement attorney shall only act in the event that both of my originally nominated attorneys shall have died before me or are otherwise unable or unwilling to act or the appointment of them fails for any other reason.

In the event of any difficulty arising with the operation of the provisions above then my attorneys should act jointly and severally and in the event of any replacement attorney acting because of failure of the above provisions my originally nominated attorneys who are still capable of acting shall be reappointed to act with them insofar as it shall be possible to do so and on a joint and several basis.”

11.	The provision in section 4 of the LPA for health and welfare was broadly similar:

“My attorneys may act jointly and severally save with regard to any decision as to the withdrawal of life sustaining treatment when all surviving attorneys who are capable of acting (whether originally appointed or who have been appointed by and are acting in substitution) shall act jointly insofar as there may be more than one of them able to do so but in the event that there is only one of them capable of acting I expressly re-appoint that attorney to act alone.

My replacement attorney shall only act in the event that both of my originally nominated attorneys shall have died before me or are otherwise unable or unwilling to act or the appointment of them fails for any other reason and I also expressly re-appoint any originally nominated attorneys who are still capable of acting and wish to do.

In the event of any difficulty arising with the operation of the provisions above then my attorneys should act jointly and severally and in the event of any replacement attorney acting because of failure of the above provisions my originally nominated attorneys who are still capable of acting shall be reappointed to act with them insofar as it shall be possible to do so and on a joint and several basis.”

12.	There were two other provisions about which the Public Guardian had some doubts. These were contained in section 5 of the LPA for property and financial affairs, but at the hearing the Public Guardian conceded that both of these provisions were effective and I do not propose to consider them in this judgment. 

The application

13.	On 29 August 2014 the Public Guardian applied for the following order: 

“The Public Guardian would like the court to provide guidance and direct whether the provisions set out in the attached COP24 are valid as part of the Lasting Powers of Attorneys.

Should the court consider these provisions to be ineffective the Public Guardian requests notification that the court has severed the provisions, or a direction to cancel the registration of the instrument as a lasting power of attorney under Schedule 1, paragraph 19(2).” 

14.	The application was accompanied by a witness statement (COP24) made by Fatima Chandoo, a trainee solicitor with the OPG. 
 
15.	On 4 September 2014 I made an order directing that: 
(a)	the OPG serve the papers on the respondents by 12 September;
(b)	the respondents file a position statement or a skeleton argument by 3 October setting out any submissions on which they wished to rely in response to the application;
(c)	the Public Guardian file a response by 17 October; and
(d)	the matter be listed for a hearing before me on 23 October 2014.

David Satchell’s witness statement

16.	On 1 October 2014 David Satchell made a witness statement on behalf of the respondents, in which he said as follows:

“I make this statement as the solicitor to the respondents to this application and as the solicitor who drew up the Lasting Powers of Attorney which are the subject of the application. Given that the issues raised in the application are of a technical nature I have the authority of the respondents to file this statement on their behalf.

1.	In preparing Lasting Powers of Attorney for any client my starting point is the maximum protection for the client consulting me. Accordingly, although the general view (which I do not disagree with) is that donors should only be appointing attorneys who they can trust to conduct their affairs appropriately, historical evidence from a variety of publically available sources, including the Office of the Court of Protection and the Court of Protection, confirms that many people are least able to trust those whom they should be able to trust the most and that the majority of abuse is by persons with close familial relationships or in positions of trust in relation to the person abused. For this reason, I always try to prepare LPAs for clients with as many safeguards in place as possible.

2.	Accordingly, subject always to the donor’s instructions, I prepare any Lasting Power of Attorney that appoints more than one attorney jointly for some decisions and jointly and severally for other decisions on the basis that straightforward less important decisions can be made by one attorney alone, whilst those more complex decisions or decisions of fundamental importance ought to be made by all those appointed to act.

3.	In a property and finance LPA this means that I will normally require that all available attorneys join in any sale of any property and any transaction in excess of £10,000. The provision is there directly to avoid financial abuse.

4.	In relation to a health and welfare LPA I would normally provide that any decision as to life-sustaining treatment should be made by all attorneys. Whilst on the one hand this is to ensure that all attorneys are involved in the most important decision that can ever be made on behalf of someone else, it also ensures that the attorneys are not obligated to make the decision on their own and that attorneys who may not have been involved in the decision cannot at a later date turn on those who did to suggest that one attorney alone terminated the life of a loved one. The restriction therefore prompts co-operation and support between attorneys where a decision could otherwise divide them forever.

5.	I am aware of the provisions of the Mental Capacity Act (MCA) which say that where any appointment is made on a joint basis then decisions subject to that joint appointment can no longer be made once any attorney subject to that joint appointment is no longer able to act. However, I am not aware of any provision which provides that the remaining attorney is not entitled to still continue making those decisions which they were always permitted to make on a several basis. Further, the MCA is silent as to whether or not an attorney can be reappointed. It is my understanding of English law that statutes are prescriptive and that, when read in conjunction with the common law, a person is entitled to do something unless there is a statutory restriction providing otherwise. It would therefore be my understanding that, in the absence of a statutory restriction on the reappointment of an attorney, that there is no reason why a donor cannot do so.

6.	Whilst it has been suggested to me in the past by the OPG that appointments in such a manner can be confusing, it should be compared to the position of appointments of executors under the Wills Act 1837, which is well settled. In the first instance, executors are obligated to act together, but on the death or incapacity of either one of them the survivor is entitled to continue to act, even in relation to decisions where they would otherwise have had to have acted jointly. Insofar as any substitutional appointment is concerned, the testator is at liberty to prescribe whether any one or more of the substitutionary executors is to replace a particular executor alone or any executor unable to act, and in which case creates a new joint appointments, or whether they are only to act in the event that the originally appointed executors are unable to act when the new executors will act alone or jointly depending how many of them are appointed. 

7.	There does not appear to be any fundamental difficulty in understanding such provisions and, although the initial appointments are crystallized at the point of death, it is still the case that an originally appointed executor can continue to act after the death of another and a new trustee can be appointed where required.”  

The Public Guardian’s skeleton argument

17.	On 17 October 2014 the Public Guardian filed the following skeleton argument:

1.	The Public Guardian appreciates that solicitors are attempting to safeguard their clients whilst drafting their Lasting Powers of Attorney (LPAs) and seeks only to ensure that restrictions and conditions are legal and provide sufficient clarity.

2.	The Office of the Public Guardian receives more than 5,000 applications to register powers of attorney each week and it is not feasible for the legal team to review all restrictions and conditions and where this is necessary solicitors who regularly submit applications are aware that this will cause a delay in registration of their clients’ LPAs and potentially result in severance of certain provisions. 

3.	These LPAs raise the question of whether it is possible to reappoint an original attorney to act alone before any substitute attorney acts where a joint appointment has failed.

4.	As there is no express provision in the Mental Capacity Act 2005 (MCA) as to whether or not an attorney can be re-appointed, we are not able to make this decision as a regulatory rather than decision-making body.

5.	In addition, the caveat referred to by Mr Satchell seeks to reappoint the original attorneys should the original provision reappointing them fail and we must also refer this to the court.

Discussion

18.	The question I am required to answer is whether the donor of an LPA can appoint more than one attorney to act jointly with survivorship by expressly re-appointing the continuing attorney or attorneys.

19.	Historically, the Court of Protection could appoint the precursors of deputies (who were known as ‘committees’ and ‘receivers’) to act jointly with survivorship: Lunacy Rules 1892, rule 69. Ironically, the textbooks used to frown upon such appointments. For example Heywood & Massey Court of Protection Practice (12th edition, 1991) stated on page 22 that:

“A joint receivership is not favoured, for although the appointment can be made with survivorship, it has been found in practice that it has been inconvenient and not conducive to the smooth running of the estate; further, it is likely to involve more expense and delay.”

20.	The final version of this provision was Rule 44 of the Court of Protection Rules 2001, which said:

“Where in the opinion of the court two or more persons ought to be appointed receivers for the same patient and one or more of them ought to continue to act after the death or discharge of any of the others, the court may when appointing the receivers direct that the receivership shall continue in favour of the surviving or continuing receiver or receivers.”

21.	It is no longer possible for the Court of Protection to appoint deputies to act jointly with survivorship. Section 19(4) of the Mental Capacity Act 2005 gives the court three options: 

“The court may appoint two or more deputies to act –
(a)	jointly,
(b)	jointly and severally, or
(c)	jointly in respect of some matters and jointly and severally in respect of others.”

22.	Donors of LPAs are given exactly same choice when they appoint two or more attorneys. Section 10(4) of the Act provides that the instrument appointing two or more persons to act as donees of a lasting power of attorney “may appoint them to act:
(a)	jointly,
(b)	jointly and severally, or
(c)	jointly in respect of some matters and jointly and severally in respect of others.”

23.	The current forms of LPA are prescribed by a statutory instrument; the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment) Regulations 2007 (SI 2007 No. 1253), as amended by the Lasting Power of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment) Regulations 2009 (SI 2009 No. 1884).

24.	Section 4 of each prescribed form of LPA defines the terms ‘jointly’ and ‘jointly and severally’ as follows:

o	Jointly: this means that the attorneys must make all decisions together. For further information on appointing your attorneys jointly, see the separate guidance.
o	Jointly and severally: this means that attorneys can make decisions together and separately. This might be useful, for example, if one attorney is not available to make a decision at a certain time. If one attorney cannot act the remaining attorney is able to continue to make decisions.
o	Jointly for some decisions, and jointly and severally for other decisions: this means that your attorneys must make certain decisions together and may make certain decisions separately.

25.	The separate guidance to which section 4 of the LPA refers is contained in two booklets:
(a)	LPA111: Guidance for people who want to make a lasting power of attorney for health and welfare; and
(b)	LPA112: Guidance for people who want to make a lasting power of attorney for property and financial affairs.

26.	On pages 19 and 20 respectively of these booklets the following note appears:

“Bear in mind that if one of your attorneys dies (or can no longer act on your behalf), the other attorney will not be able to make the decisions you have specified to be taken jointly. In this situation it is advisable to have a replacement attorney. The surviving original attorney(s) may act with the replacement attorney in making decisions which may be taken jointly and severally, but cannot continue to make decisions which were to be taken jointly. The replacement attorney will make those decisions.”
 
27.	In order to create the effect of appointing more than one attorney to act jointly with survivorship, the donor could appoint A, B and C jointly to be the attorneys and appoint them subsequently to act jointly and severally. When one of the events mentioned in section 13(6) of the Mental Capacity Act 2005 occurred, which terminated the joint appointment, the joint and several appointment would come into operation and enable the surviving attorneys to continue to act.

28.	However, because of the design of section 4 of the prescribed form, I do not think it would be possible to achieve this by appointing A, B and C to act jointly and severally as replacement attorneys in the same instrument. Having already ticked the box to appoint the original attorneys to act jointly, there is no facility for the donor to state that the replacement attorneys shall act jointly and severally.

29.	In my view, the safest way of achieving the effect of joint attorneyship with survivorship would be for the donor to execute two LPAs: the first appointing the attorneys to act jointly, and the second appointing them to act jointly and severally with a condition that the second LPA will come into operation when the first LPA fails for any reason. The second LPA could also provide for the appointment of one or more replacement attorneys, if that is what the donor wishes.

30.	Mr Satchell would probably say that this does not precisely meet his clients’ requirements, but I would respectfully suggest that in future he channels his clients’ requirements into the framework set out in the primary and secondary legislation, rather than draft tortuous provisions that attempt to circumvent it. 

31.	I disagree with Mr Satchell’s suggestion that “in the absence of a statutory restriction on the reappointment of an attorney, there is no reason why an attorney cannot do so.” If Parliament had intended that donors could appoint attorneys to act jointly with survivorship, it would have expressly provided for this in section 10(4) of the Mental Capacity Act 2005 with a formula broadly similar to the wording in rule 44 of the Court of Protection Rules 2001, to which I referred in paragraph 20 above. Similarly, if it had been the intention of Parliament that attorneys could be re-appointed in the manner suggested by Mr Satchell, it would have said so and it would have made provision to accomplish this. 

32.	Mr Satchell’s comparison with the appointment of executors was neither helpful nor relevant. The appointment of attorneys is governed by its own primary and secondary legislation and, in order to resolve this issue, we need look no further than the Mental Capacity Act 2005 and the LPA, EPA and PG Regulations 2007 as amended by the 2009 regulations. 

33.	An additional difficulty with Mr Satchell’s wording is that the re-appointment of a surviving attorney is contingent and unpredictable and fails expressly to name either an individual or a trust corporation, as is required by section 10(1) of the Act. 

34.	Page 13 of the guidance booklets - LPA111 and LPA112 – states “To avoid rejection of your LPA when applying to register …. Make sure that you provide details of named individuals (i.e. not a title like “Director of Social Services”, or the name of a firm of solicitors).” The same would apply to the appointment of “all surviving attorneys who are capable of acting.” 

35.	There are also problems relating to the surviving attorney’s acceptance of the appointment, which is normally effected by signing Part C of the prescribed form, headed “Declaration by each attorney or replacement attorney.”

Decision

36.	For these reasons, therefore, I conclude that the wording in section 4 of Mrs Miles’s LPAs is partially ineffective and I shall sever the ineffective provisions and give notice to the Public Guardian that I have done so pursuant to paragraph 19 of Schedule 1 to the Act.

37.	For the avoidance of doubt, the words to be severed in the LPA for property and financial affairs have been struck through as follows: 

“My attorneys may act jointly and severally save with regard to: 
1.	any sale of my property at address (or any property which may subsequently replace it); and
2.	any transaction in excess of £10,000

when all surviving attorneys who are capable of acting (whether originally appointed or who have been appointed by and are acting in substitution) shall act jointly insofar as there may be more than one of them able to do so but in the event that there is only one of them capable of acting I expressly re-appoint that attorney to act alone.

My replacement attorney shall only act in the event that both of my originally nominated attorneys shall have died before me or are otherwise unable or unwilling to act or the appointment of them fails for any other reason.

In the event of any difficulty arising with the operation of the provisions above then my attorneys should act jointly and severally and in the event of any replacement attorney acting because of failure of the above provisions my originally nominated attorneys who are still capable of acting shall be reappointed to act with them insofar as it shall be possible to do so and on a joint and several basis.”

38.	The provisions to be severed in the LPA for health and welfare are as follows: 

“My attorneys may act jointly and severally save with regard to any decision as to the withdrawal of life sustaining treatment when all surviving attorneys who are capable of acting (whether originally appointed or who have been appointed by and are acting in substitution) shall act jointly insofar as there may be more than one of them able to do so but in the event that there is only one of them capable of acting I expressly re-appoint that attorney to act alone.

My replacement attorney shall only act in the event that both of my originally nominated attorneys shall have died before me or are otherwise unable or unwilling to act or the appointment of them fails for any other reason and I also expressly re-appoint any originally nominated attorneys who are still capable of acting and wish to do.

In the event of any difficulty arising with the operation of the provisions above then my attorneys should act jointly and severally and in the event of any replacement attorney acting because of failure of the above provisions my originally nominated attorneys who are still capable of acting shall be reappointed to act with them insofar as it shall be possible to do so and on a joint and several basis.”

39.	Although no one mentioned costs either in the papers or at the hearing, I propose to make no order for costs in this matter.