Approach to retrospective determinations of LPA capacity clarified (Public Guardian v RI & Ors)


A High Court judge provides much welcomed clarity on the legal and evidential points courts should consider when determining if the capacity requirement for the creation of a Lasting Power of Attorney has been met. In this case, the Court determined that the donor did not have capacity because there was convincing expert evidence that, due to the specific nature of his cognitive impairment (a learning disability), his capacity at the time the LPA was executed was unlikely to have differed from his current capacity. It was not disputed that the donor did not currently have capacity to make an LPA. The need for LPA certificate providers to clearly record how they have tailored their capacity assessment to the donor’s specific impairment and taken into account the influence of well-meaning family members in putting the donor on the path to signing an LPA is clearly illustrated by the facts of this case. Written by Katharine Elliot, who acted for the Public Guardian in these proceedings. The Public Guardian v RI & Ors [2022] EWCOP 22 What are the practical implications of this case? In considering whether the donor in this case (“P”) had capacity to execute a Lasting Power of Attorney for Property and Financial Affairs (“LPA”), Mr Justice Poole clarified the approach that should be taken by the courts when retrospectively determining issues of capacity for the purposes of section 22(2)(a) of the Mental Capacity Act 2005 (the “MCA 2005”). This authoritative guidance – which sets out the relevant information for the purposes of assessing LPA capacity and the evidence the courts should be given when undertaking that assessment - will be welcomed by all practitioners dealing with (challenges to) capacity to execute an LPA in light of the previous dearth of authority on this point since the decision in Re Collis (unreported, 27 October 2010). The evidence ‘check list’ at paragraph 27 of the judgment will be of particular assistance to those preparing to challenge, defend, or ‘bullet proof’ in anticipation of a potential challenge the capacity requirement for an LPA. The need for certificate providers to be able to evidence that they have tailored their capacity assessments to reflect individual capacity difficulties, and that they have the requisite experience to do so effectively, is made clear. The case should also sound a warning note for legal professionals and certificate providers involved in cases where the LPA process is instigated by a member of P’s family with P’s best interests at heart but where the picture as to P’s own capacity is less than clear. What was the background? P had a learning disability and was continuing to receive treatment following a diagnosis of chronic schizophrenia. For the majority of his life, he had lived with his mother, V, and was fairly independent, travelling and shopping on his own as well as taking care of his own personal routine.  In December 2009, V consulted a legal executive at a solicitor’s firm (the “LE”) about her will and how to safeguard P’s interests after her death. She was advised to settle P’s inheritance on trust and that an LPA should be put in place for P. The LPA was purportedly executed some days later, with P attending the solicitor’s office at V’s request. The LPA appointed V and P’s two brothers, RI and RO, as his attorneys. The LE acted as the certificate provider, having interviewed P in private. The parties had not been able to locate the LE and the Court did not have the benefit of the usual capacity evidence expected from a certificate provider (i.e. of the details of his assessment of P). V died in 2015, leaving RI and RO as P’s attorneys. Shortly before V’s death, P had moved to a care home, where he continued to be fairly independent. Unfortunately, P developed behavioural issues which manifested while he was in the community and was placed under a deprivation of liberty restriction as a result. In 2019, P’s care home raised concerns with the Public Guardian about the conduct of P’s attorneys. The Public Guardian’s initial investigation raised concerns about whether P had had capacity to execute the LPA, and a Court of Protection Special Visitor (the “COP SV”) was commissioned to assess P. The COP SV concluded that P suffered from a lifelong disability, which would have manifested in a static level of cognitive impairment. In other words, his capacity was unlikely to have changed since 2009. As the COP SV assessed P as not having capacity in 2019 (P not being able to understand or retain any information about the LPA), he also considered that P would not have had capacity in 2009. It was not disputed that P no longer had capacity to execute an LPA or manage his property and financial affairs. The Public Guardian applied for a determination to this effect and an order directing cancellation of the LPA’s registration. P’s family opposed the Public Guardian’s application on the basis that P had been assessed as having capacity by the LE and that his level of cognitive impairment had in fact worsened in the subsequent years, as evidenced by the deterioration in his behaviour. What did the court decide? The sole issue before the Court was whether P had capacity to execute the LPA. As the question was one of past capacity, a section 15 MCA 2005 declaration was not required. The issue was to be determined under section 22(2)(a) MCA 2005. While capacity is time specific, the Court would reach its determination having regard to all the relevant capacity evidence, both that which had been available at the material time (i.e. when the LPA was executed) and that which had subsequently been made available to the Court. The judge listed the evidence that should ideally be made available to the courts when determining past capacity to execute an LPA (see paragraph 27):

  • Evidence from the certificate provider about their assessment of P, including how P’s specific type of cognitive impairment was addressed;
  • Evidence from carers and family members about P’s capacity to execute the LPA at the relevant time and any subsequent changes in P’s presentation in terms of capacity;
  • Professional evidence as to P’s capacity at around the time the LPA was executed (e.g. medical evidence, capacity assessments, assessments for benefits, social care records etc); and,
  • An assessment by a suitably qualified and experienced person of P’s current capacity and capacity at the relevant time, informed by the previous three categories of evidence.
In terms of the relevant information which P would need to understand to have capacity to execute an LPA, the Court held (building upon Re Collis) that P would have needed to understand (see paragraph 16):
  • The effect of the LPA;
  • Who the attorneys were;
  • The scope of the attorneys’ powers, including the restrictions imposed by the MCA 2005;
  • When attorneys can exercise their powers (e.g. post-registration by the Public Guardian);
  • The scope of the assets the attorneys can deal with under the LPA (in this case, including the sum held in trust for P);
  • P’s power as donor to revoke the LPA while he has the capacity to do so; and,
  • The ‘pros and cons’ of executing the LPA in the particular terms and of not doing so.
The Court emphasised that the bar for capacity should not be set too high and that the fact P “may not have understood every provision in the LPA or every possible consequence of making it or not making it does not necessitate a finding that he could not have understood explanations given to him in a way that was appropriate, for example by use of simple language” (paragraph 28). The Court also had regard to the fact that P was entitled to rely, as many people do, on the LE and his family for explanation and advice. Applying these principles and the key principles under the MCA 2005 (sections 1 to 3), the judge considered that the COP SV’s report was compelling evidence that P lacked capacity to execute the LPA. The COP SV’s conclusions were not weakened by the family’s argument that P’s behaviour had deteriorated since 2009. This change in behaviour and/or mental state did not speak to a change in P’s capacity to make the decision in question. While the LE had briefly outlined his previous experience of advising on LPAs in the LPA form, there was no evidence of his experience of assessing people with learning disabilities, or even that P’s learning disability had been taken into account, or as to what advice the LE gave P during their private interview. While it might be open to the Court to infer that the LE had properly advised P, it could not be inferred in light of the available evidence that P had had the capacity to understand, retain, use and weigh the information he was provided with. While P might have understood some aspects of the LPA, for example, that RI and RO would be his attorneys, the evidence showed he did not understand key matters such as the scope of their powers etc. The evidence also showed that P was compliant with an LPA process set in train by V with P’s best interests at heart, but that he did not have capacity to instigate that process or execute the LPA himself. Case details: Court: High Court (Court of Protection) Judge: Mr Justice Poole Date of judgment: 7 June 2022

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