The Public Guardian’s Severance Applications [2017] EWCOP 10

WTLR Issue: Autumn 2017 #169

In the matter of: JG (Case No 12911940); DH (Case No 12911905); SH (Case No 1291136T); SHH (Case No 12922074); SG (Case No 12921347); SR (Case No 12921353); MN (Case No 12922419); RH (Case No 12922448); JG2 (Case No 12905606); JR (Case No 12922477); JF (Case No 12925291); PG (Case No 12926046); GO (Case No 12918069); GB (Case No 12946433); JB (Case No 12946312); GD (Case No 1294678T); CW (Case No 12946813)

Analysis

The Public Guardian brought various consolidated applications for severance under para 11((3) of Schedule 1 of the Mental Capacity Act 2005 (the MCA 2005) in respect of various lasting powers of attorney which were potentially unlawful or ineffective by reason of the operation of s9 MCA 2005, which provides that an LPA is not created unless it is made and registered in accordance with Schedule 1 of para 19.

Held:

  1. 1) As to MC, the donor at s7 of the LPA had instructed that ‘Any financial decisions up to the value of £150.00 can be made independently by my attorneys. However any financial decisions over this amount must be agreed upon by both my attorneys’. The Public Guardian’s objection was that the donor then ticked the box on p4 which stated that her attorneys are to act jointly and severally (presumably thinking this meant that some decisions were to be joint and some several), rather than the box lower down the page to the effect that some decisions are to be made jointly and some jointly and severally. It was simply an error in completing the form. The donor’s intention was not ambiguous and it was wrong in principle to excise the condition or restriction in s7 when it was the box on p4 which was the error.
  2. 2) As to JG, the Public Guardian submitted that the words in the preferences box of s7 of the instrument (‘I would like my attorneys to consider Thomas G (my son) as my main priority when making decisions.’) required severing because they were ‘incompatible with the requirement in s1(5) of the MCA that any act done or decision made must be done or made in the donor’s best interests’: However, all she had done was to specify that she would ‘like’ her donees to consider her son as her main priority. The Act entitled her to make a written statement concerning her wishes and feelings (s4(6)(a)) which the donees had to consider when deciding what decision is in her best interests. She had done no more than exercise that right. Thus the words were not ineffective and did not prevent the instrument from operating as a valid LPA.
  3. 3) As to DH, the Public Guardian submitted that the words ‘I would like my Grand children to be each given, £1,000, I would like any funds left over, to be equally shared between my children S, P and C.’ required severing because they sought to extend the scoep fot eh gifting authority under s12 MCA 2005. However, because Mr DH expressed all of this as a wish in the preferences box (what he would ‘like’), rather than as a binding condition on his donees in the instructions box (what they must do), it did not require severing.
  4. 4) As to SH, the Public Guardian submitted that the following words in the instruction box within s7 of the instrument required severing because they were incompatible with the nature of the appointment of attorneys to act jointly and severally: ‘While my attorneys are authorised to act jointly and severally I specifically direct that all decisions must be made by at least two of my attorneys and that no attorney has the power to make decisions individually.’ This did require severing.
  5. 5) As to SHH, the person who witnessed the donor sign the Option A box of s5 was her solicitor, LD. However, she did not print her name and address next to her own signature in the space provided for the witness to do so. She did do so elsewhere on the LPA form, so her printed name and address were accurately recorded on the face of the instrument. Her omission to print her name and address next to her signature in s5 was a defect in the prescribed form of the instrument that fell within para 3. It was material given that it relates to life-sustaining treatment but can be rectified by the court under para 3(2) given her clear intention. Thus the Court made an appropriate declaration under s23 in terms of the meaning or effect of the instrument, and in particular that Option A had effect.
  6. 6) As to SG, the donor appointed VVVE as a replacement attorney, only to take effect if she remained legally married to her son at the point he became unable to act as attorney. The Public Guardian contended that this was not in line with s13(6)(a) to (d) MCA 2005 in that the dissolution or annulment of marriage between the attorneys was not one of the five reasons in which an attorney’s appointment would cease. Nowhere in the Act was it stated that the terms of the instrument could not include a condition which must be satisfied before a named person replaces a donee whose appointment has been terminated under s13(6)(a) to (d).
  7. 7) As to SR, the Public Guardian submitted that a preference in s7 of an LPA that the attorneys could act severally except on investment decisions of £50,000 or more should be severed as it was inconsistent with joint and several appointment. The defects embraced by a ‘differs in an immaterial respect in form or mode of expression’ saving provision at para 3(1) of Schedule 1 MCA 2005 included minor misspellings of names and addresses, entering a person’s last name in the first names box and vice-versa, omitting a person’s title (Mr, Ms, etc), using and attaching continuation sheet 1 but not crossing the ‘More replacements’ box, and so on, all of which fall squarely within the ‘pettifogging’ category of defects.
  8. 8) As to MN, the Public Guardian submitted that a preference in s7 of an LPA required severing where they sought to extend the scope of gifting authority, by suggesting the provision of monthly assistance payments to the donor’s granddaughter. Because this was expressed as a wish in the preferences box, rather than a binding condition, the words did not require severing.
  9. 9) As to RH, the Public Guardian noted that some sections of the form had been executed in the wrong order. In particular, it submitted that the continuation sheet was invalid because it was executed six days after ss5 and 9 of the form. The Court held that ss5 and 9 and the continuation sheet were all signed on or before the date when certificate provider gave and signed his certificate, the continuation sheet does not require a witness as drafted, and in my view the intention of the donor is clear. On balance registration should be directed on the basis that the donor added the additional information before he had had the instrument certified.
  10. 10) As to JG2, the Public Guardian submitted that the following words in the instructions box shodl be deleted because they were incompatlbe with joint and several appointment: ‘My Attorneys must make decisions jointly in respect of the sale of my property at X Lane, Leicester’ including any property that I may be residing in that is considered as my main residence, jointly.’ The question in this case was what weight to give to the fact that the wrong box on p4 had been ticked. The answer, was not much. It was simply an error in completing the form. The donor’s intention was unambiguous and to me it was wrong in principle to excise the condition or restriction in s7 when it was the box on p4 which was the error.
  11. 11) As to JR, the donor had ticked the box in s3 of page 4 which stated that her two attorneys were jointly and severally authorised to make health and welfare decisions on her behalf, but in the instructions box she asked them to make life or death decisions together. The Public Guardian sought severance. However the donor’s intention was clear. This was simply an error in completing the form. It was far more important to give weight to the donor’s intention that both donees agreed on life and death decisions than to give weight to ticking the wrong box.
  12. 12) As to JJ, the donor appointed three attorneys jointly and severally, but then stated that two of the attorneys had to act jointly concerning her estate, but that her partner could act independently. The Public Guardian sought severance. However, this would defeat the clear intention of the donor. However the Court was bound by current case law to make one of two decisions: either not to sever and to direct the Public Guardian not to register the instrument (given that the result goes against JF’s manifest intention) or to sever and direct registration. Given the donor’s consent to severance, with considerable reluctance, severance should be ordered.
  13. 13) As to PG, the donor authorised her attorneys jointly and severally to make decisions concerning her property and affairs. She instructed her attorneys (in the instructions, rather than preferences box) to ensure that her daughter’s needs were met. The Public Guardian stated that this was incompatible with the requirement that the acts and decisions must be in the donor’s best interests, and not those of a third party. They sought severance of the instruction. The Court held that the requirement was not contrary to the requirements of s1(5), or was ineffective, or prevented it from operating as a valid LPA. It was not per se contrary to PG’s best interests that her donors ensured that her child’s needs continued to be met from her estate. As to the restricting on gifting, this was a case of meeting a need rather than gifting. There was nothing to prevent her from imposing that condition on her attorneys.
  14. 14) As to GO, the Public Guardian asked the court to sever a restriction imposed on just four out of five attorneys appointed jointly and severally, because it was inconsistent with joint and several appointment. The Court was bound by current case law to make one of two decisions: either not to sever and to direct the Public Guardian not to register the instrument (given that the result goes against GO’s manifest intention) or to sever and direct registration. Given his consent to severance, with reluctance the Court decided on the latter course.
  15. 15) As to GB, the Public Guardian asked the court to sever a preference that the replacement attorneys acted jointly and severally, though jointly for sale or rental of properties and investments. They said that this was incompatible with joint and several appointment. However the donor’s intention was clear. Her replacement donees were to act jointly in some matters (the sale or rental of properties and investments) but could act alone in all other matters. In other words, ‘jointly for some decisions, jointly and severally for other decisions’. The instrument was therefore sufficient and in the prescribed form.
  16. 16) As to JB, the donor authorised his wife to be his attorney in relation to property and affairs decisions. He appointed two replacement attorneys and instructed them to act jointly when deciding sale or rental of his properties or investments. In the continuation sheet he stated that he wanted them to act jointly for sale of rental properties and investments. However the donor’s intention was clear form an overall reading of the instrument. His replacement donees were to act jointly in some matters (sale or rental of properties and investments) but could act severally in all other matters. In other words, ‘jointly for some decisions, jointly and severally for other decisions’. The instrument was therefore sufficient and in the prescribed form.
  17. 17) As to GD, the donor authorised two persons jointly to be her attorneys in relation to decisions concerning her property and affairs. She also appointed one replacement attorney. In s5 of the instrument (‘When do you want your attorneys to be able to make decisions?) she ticked the box ‘As soon as my LPA has been registered’, rather than the box ”Only when I don’t have mental capacity’. In s7 of the instrument the donor then completed the preferences box stating that the power should only come into effect when the attorneys had reason to believe of the donor’s becoming incapable of making decisions. The Public Guardian asked the court to sever these words because they are incompatible with the option chosen in s5 which states that the attorneys are able to make decisions as soon as the LPA has been registered. Clearly s5 or 7 required correction. The Public Guardian had made enquiries of GD who stated that her intention was that the attorneys be authorised to make decisions on her behalf as soon as the instrument is registered. Therefore it was s7 that required severing.
  18. 18) As to CW, the donor authorised her mother to be her attorney in relation to property and affairs decisions ,and appointed one replacement attorney. In the preferences box she stated that she wished that the money be used for the benefit of her mother and daughter as wel Mental Capacity Act as her own. The Public Guardian stated that this sought to extend the scope of gifting authority. However, this was a mere expression of wishes and feelings, which she was empowered to make under the Act. The LPA was not invalid.
JUDGMENT DISTRICT JUDGE ELDERGILL INTRODUCTION [1] This case involves 17 electronic applications made by the Public Guardian for Lasting Powers of Attorney to be severed. STRUCTURE OF THE JUDGMENT [2] This decision is structured under the following headings: Structure of the Judgment Parties and Interested Persons Procedure and Hearings Legal Framework The Individual Cases Concluding …
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Cases Referenced

Legislation Referenced

  • Mental Capacity Act 2005, s9, s12, s13, s23