Joshua Swirsky considers The Public Guardian’s Severance Applications  EWCOP 10 in which District Judge Eldergill gave guidance following 17 applications by the Public Guardian for LPAs to be severed.
Intention Over Form
In The Public Guardian’s Severance Applications  EWCOP 10 District Judge Eldergill considered 18 applications by the Public Guardian to sever parts of applications to register Lasting Powers of Attorney (LPA) which potentially made the powers unlawful or ineffective. These kind of issues are common when donors complete their forms online and do not necessarily understand concepts like ‘joint and several’ or the wording of the form itself; although it is right that among the 18 applications was at least one form completed by a solicitor.
LPAs are governed by s9 of the Mental Capacity Act 2005. An LPA will be ineffective (‘confer no authority’) if it does not comply with ss9 and 10, and schedule 1 of the 2005 Act. Paragraph 1 of Schedule 1 requires an LPA to be in the proscribed form. Paragraph 3(1) allows the Public Guardian to ignore immaterial differences, while paragraph 3(2) allows the COP to declare an instrument that is not in the proscribed form to be treated as if it were if the Court is satisfied that the donor intended to create an LPA.
The judge held that paragraph 3(2) was sufficiently wide for the Court to ignore errors such as boxes not being ticked or the wrong boxes being used if it was clear that the donor intended to create an LPA. However, paragraph 3(2) required there to be an instrument and therefore the form had to be executed.
Each of the applications was brought by the Public Guardian, perhaps in recognition of the difficulty and cost that making such an application would cause to a donor or donee. However, strictly speaking such applications should be made by the donor if he/she retains capacity and the putative attorney in other cases.
The purpose of the judgment seems to be to set out the relevant law in one place and to give some idea as to how the Court will approach these problems. However, each case is fact sensitive and its outcome will depend on its own circumstances.
The 18 applications were not concerned with errors in the proscribed form but rather with other aspects that make the applications ineffective. Paragraph 11 of Schedule 1 forbids the Public Guardian from registering LPAs that do not comply with the Schedule unless authorised by the Court to do so. The COP has power under ss22 and 23 of the 2005 Act to determine any question concerning whether one of the requirements to create an LPA has been met (s22) and to determine any question as to the meaning or effect of an LPA or an instrument purporting to create one (s23). By paragraph 11(3) the Public Guardian can refer potentially defective instruments to the COP for the determination of a question. The Court has the power to sever any part of the instrument that might make the LPA ineffective.
DJ Eldergill considered paragraph 11 and identified 3 distinct situations where the Public Guardian was prevented from registering an LPA.
- The instrument is not made in accordance with the Schedule (para 11(1));
- The instrument contains a provision that would ineffective as part of an LPA (para 11(2)(a)); and
- The instrument contains a provision that would prevent it from operating as a valid LPA (para 11(2)(b)).
Category (i) concerns not only the proscribed form but also (a) compliance with paragraph 2 of the Schedule – the proscribed information, two statements by the donor, one by the donee and the capacity certificate, and (b) execution in accordance with paragraph 9 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007.
Categories (ii) and (iii) are matters which should be referred to the Court under ss22 and 23 for consideration of whether the potentially defective parts of the instrument need to be severed.
This is not the place to deal with the 18 individual cases which all have different facts. It is clear, however, that the judge was guided by the Nugee J’s remarks in Miles & Beattie v The Public Guardian  EWHC 2960 (Ch) at para 19: ‘… it is right that the Act should be construed in a way which gives as much flexibility to donors to set out how they wish their affairs to be dealt with as possible, the Act being intended to give autonomy to those who are in a position where they can foresee that they may in the future lack capacity to specify who it is that they wish to act for their affairs.’
The judge’s approach has been to give effect to the intentions of the donor wherever possible either by reading the instrument as a whole to give effect to the donor’s intentions (eg where a witness had omitted her full name from the box next to the section concerning life saving treatment) or by severing offending passages (eg where one part of the form contradicts another). The case also gives guidance as to how the COP will approach to wishes for payments to others in LPAs (at paras 134-152). The judge drew a distinction between gifts that are limited by statute and payments to meet someone else’s needs (eg a dependent). A payment to meet another’s needs (eg in the case of a disabled child) is likely not to be classed as a gift especially if this was part of the pattern of the donor’s life before the execution of the LPA instrument. As with all applications under ss22 and 23 it will depend on the particular facts of the case.
Although no general principle can be derived from the case it is extremely useful as a guide to the approach that the Court will take and the individual cases do cover many of the myriad circumstances that could arise.