Approach to assessing Lasting Power of Attorney capacity clarified

In giving judgment in Public Guardian v RI & Ors [2022] EWCOP 22, Mr Justice Poole clarified the legal and evidential points courts and other assessors will need to consider when determining if an individual has or had capacity to execute a Lasting Power of Attorney (‘LPA’).

The protected party in this case (‘P’) had a learning disability and a diagnosis of chronic schizophrenia. P’s mother (‘V’), with whom he lived, consulted a legal executive (the ‘LE’) who advised that an LPA should be put in place for P. The LPA, which appointed V and P’s two brothers as P’s attorneys, was purportedly executed some days later, with the LE acting as certificate provider. V subsequently died and P moved to a care home where he lived fairly independently until he developed serious behavioural issues and was made subject to a DOLs restriction. P’s care home raised concerns with the Public Guardian (the ‘PG’) about the conduct of P’s remaining attorneys. The PG’s investigation identified concerns about whether P had had capacity to execute the LPA. P was assessed by a Court of Protection Special Visitor (‘COP SV’) as lacking capacity to execute an LPA and as suffering from a lifelong disability which manifested in a static level of cognitive impairment, which meant P’s capacity was unlikely to have changed since the time the LPA was executed. This meant P would probably not have had capacity to execute the LPA. The PG applied for the LPA to be brought to an end. P’s family opposed this on the basis that P had been assessed as having capacity by the LE and that his cognitive function had deteriorated since the execution of the LPA as shown by his increasing poor behaviour.

In deciding that P would not have had capacity to execute the LPA, Poole J identified the following relevant principles to be applied in assessing LPA capacity:

1. P would need to understand the following relevant information to have capacity to execute an LPA:
   • The effect of the LPA;
   • Who the attorneys were;
   • The scope of the attorneys’ powers, including the restrictions imposed by the Mental Capacity Act 2005 (the ‘MCA’);
   • When attorneys can exercise their powers;
   • The scope of the assets the attorneys can deal with under the LPA;
   • 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.
2. While capacity is time specific, an assessment of past capacity will have regard to all the relevant capacity evidence, both that which was available at the material time (i.e. when the LPA was executed) and that which is subsequently made available.
3. That evidence should ideally include:
   • 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.
4. The bar for capacity should not be set too high. 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. The court should also have regard to the fact that P was entitled to rely, as many people do, on the LE and his family for explanation and advice.

In this case, Poole J considered that there was compelling evidence, in particular the report of the COP SV, that P lacked capacity to execute the LPA. This evidence was not weakened by the family’s argument that P’s behaviour had deteriorated since the execution of the LPA. This change in behaviour did not evidence a change in P’s capacity to make the decision in question. While P might have understood some aspects of the LPA, for example that his mother and brothers 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.

Notably, Poole J 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). While the LE had briefly outlined his previous experience of advising on LPAs in the LPA form itself, it was held that there was no evidence of his experience of assessing people with learning disabilities, or that P’s learning disability had been taken into account, or as to what advice the LE gave P. While it might have been 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.

Poole J’s authoritative guidance on assessing LPA capacity, in particular the relevant information and evidence ‘check lists’, will be welcomed by all practitioners dealing with capacity to execute an LPA given the previous dearth of authority on this point since the decision in Re Collis (unreported, 27 October 2010). The need for certificate providers to be able to evidence that they have tailored their capacity assessments to individual capacity difficulties and that they have the requisite experience to do so effectively, is also made clear, as is the need for caution by professionals involved in cases where the LPA process is instigated by a member of P’s family and the picture as to P’s own capacity is uncertain.

Katharine Elliot successfully represented the Public Guardian in these proceedings.