Analysis
The Public Guardian filed a number of applications under s23 and schedule 1, para 11 of the Mental Capacity Act 2005 (the 2005 Act) in two test cases seeking the court’s guidance as to whether or not it was appropriate to register, with or without amendments, instruments purporting to create a lasting power of attorney (LPA).
In the first series of cases the applications concerned provisions in LPAs for personal welfare which contemplated euthanasia or assisted suicide by the attorneys. In some cases, the provisions were expressed in mandatory terms which appeared to render them ‘instructions’, whereas in other cases they were expressed as wishes rendering them non-binding ‘preferences’. The issue to be determined was whether instructions or expressed preferences as to actions which bring about the end of the donor’s life were ineffective within the meaning of schedule 1, para 11(2)(a) of the Mental Capacity Act 2005.
The second series of cases all concerned the appointment of multiple attorneys in LPAs (some relating to property and affairs, others to health and welfare). The issue was whether the LPAs complied with s10(4) of the 2005 Act which specified the ways in which two or more persons could be appointed as donees of an LPA.
Held
- An attorney cannot use an LPA as a basis for carrying out an illegal act. A ‘preference’ that the attorneys carry out an act which would on its face be a criminal offence should generally be treated as ineffective as part of an LPA. Thus both an instruction to end a donor’s life, or to assist in that process, and a preference that the attorney should do something amounting to ending the donor’s life, or assisting in that process, were both ineffective. Such an instruction or preference, if complied with, would lead the attorney to act unlawfully, in breach of s2 of the Suicide Act 1961, rather than in a way that merely exceeded his powers.
2) An instruction or preference in an LPA directing or expressing a wish that an attorney takes steps to bring about the donor’s death is instructing or encouraging someone to commit an unlawful act and therefore ineffective. An instruction is a direction in mandatory terms wherever it appears on the form. Thus an instruction in the ‘preferences’ box that is clearly mandatory should be interpreted as an instruction. Equally, a provision in the ‘instructions’ box may be couched in terms that make it clear that it is intended to be a preference. Instructions predicated on a change in the law, such a change permitting euthanasia or assisted suicide, are ineffective.
3) All the LPAs in question in the first series of cases, except one, contained an instruction or preference (in some cases expressed to be contingent upon a change in the law) to the effect that the attorney should carry out an unlawful act by taking steps to bring about the donor’s death. Such instructions or preferences were ineffective. In the remaining case, the LPA contained a statement that the donor wished to make his own decision, rather than being an instruction or preference as to how the attorney should exercise his powers. On that ground, the statement was ineffective as part of an LPA. All the provisions in the first series of cases were, therefore, ineffective and should be severed.
4) In respect of the second series of cases, s10(4) of the 2005 Act provided three options for the appointment of two or more persons as attorneys of an LPA: (a) jointly, (b) jointly and severally, or (c) jointly in respect of some matters and jointly and severally in respect of others. These three options are exhaustive. An instrument which purports to appoint the attorneys to act on a different basis to those prescribed by that subsection does not comply with s10, and consequently, under s9(2)(a), no LPA is created and, under s9(3), the instrument confers no authority at all. Where the appointment of the attorneys is to act jointly in respect of some matters and jointly and severally in respect of others, it is essential that the donor identifies the decisions that are to be taken jointly. Under s10(5), a failure to do so would lead to an assumption that the attorneys are appointed to act jointly.
5) At the same time, the 2005 Act should be construed so as to give as much flexibility as possible to donors and to give proper respect to a donor’s autonomy. In the absence of evidence to the contrary, where there was an internal inconsistency in an LPA between the way in which the donor had ticked the box in section 3 of the form and the detailed instructions contained in section 7, the latter should take precedence.
6) An LPA by a spouse appointing two attorneys (including the other spouse) to act jointly and severally, but subject to a restriction that if the other spouse is capable of acting, the attorneys other than that spouse should not act in any manner unless the spouse is unable to act on their own in that matter, is inconsistent with the power being exercisable jointly and severally. Four of the LPAs were in this form and did not, therefore, comply with s10(4) of the 2005 Act, so that the offending restriction should be severed by the court. Nor did an LPA by a donor appointing his wife and others to act jointly and severally comply with s10(4), in including an instruction that the primary attorney should be the wife, if of sound mind. The offending words should, therefore, be severed by the court.
7) A property and affairs LPA by the donor appointing her husband as sole attorney was not ineffective in requiring the attorney to obtain his children’s consent before taking certain steps. Such a requirement should be construed as a condition or restriction specified in the instrument, within the meaning of s9(4)(b) of the 2005 Act, which did not require severance. Although such a restriction potentially limits the attorney’s powers to act, it does not turn the third party into an attorney or alter the attorney’s status as the person who ultimately makes the decision on behalf of the donor. However, a requirement that the attorney should obtain the consent of the children in the choice of nursing home for the donor if it became necessary for her welfare, related to a personal welfare decision as opposed to a property and affairs decision and was, ineffective as part of a property and affairs LPA. It should, therefore, be severed.
JUDGMENT BAKER LJ: [1] This judgment concerns two test cases brought by the Public Guardian, by applications made under s23 and schedule 1 para 11 of the Mental Capacity Act 2005, regarding the validity of words in lasting powers of attorney (LPAs). The first concerns words relating to euthanasia or assisted suicide, whereas the second …Continue reading "The Public Guardian v DA & ors [2019] WTLR 313"