XZ v PUBLIC GUARDIAN (case reference:  EWCOP 35)
This case makes clear that the powers of the Public Guardian in relation to refusing to register Lasting Powers of Attorney (LPA) are limited to declining to register LPAs containing provisions which cannot actually be given legal effect in light of limitations within the Mental Capacity Act, the regulations or the common law of agency. The power to refuse registration cannot be used to exclude from registration LPAs which are merely likely to be of limited practical usefulness.
In this case, the donor of a complex LPA (Z) wished to place lengthy restrictions and limitations on his attorneys. His intent was to ensure that he could not be judged to lack capacity without robust and sustained evidence: undisputed psychiatric opinions subject to review by his close friend and the passage of a period of 60 days. Additionally he wished to limit the scope of the attorneys’ powers to emergency actions in situations of a temporary loss of capacity.
MCA 2005 Schedule 1 part 2 paragraph 11(2) permits the Public Guardian to refuse to register an LPA (and instead refer to the Court of Protection for a determination under s.23) where it contains a provision which “would be ineffective”.
The judgment defines “effective” in this section as being limited to the legal efficacy of a provision.
So, for example, a provision which purported to permit an attorney to vote in public election on behalf of the donor (contrary to s.29) would be legally ineffective because the provision could not lawfully be given effect under Election Laws.
Other examples of provisions which would be ineffective (in the legal sense) as part of a power of attorney would include:
(a) a provision which purported to permit the attorney to make gifts which go beyond the statutory restrictions found at section 12 MCA 2005.
(b) a provision which purported to go beyond what a person can ever even effectually do by an attorney (such as make a Will).
(c) a provision which purported to permit the attorney to consent to a marriage on behalf of the donor (see MCA section 27(1)(a)).
Examples where the law of agency would limit the role would be taking a degree for someone, in their name, or turning up for a driving test, saying that you were their agent. Or arguing that the person should be regarded as the employee, when they were clearly incapable of understanding that the employment role is a personal one. Some things are regarded by the law as ONLY capable of personal performance.
The Public Guardian argued here that the LPA restrictions so limited the usefulness of the LPA as to make it ineffective.
However it was held that practical difficulties in using an LPA, such as attorneys having to prove that the donor does not have mental capacity each time they try to use the LPA, are not sufficient to make an LPA “ineffective” within the meaning of Schedule 1 part 2 paragraph 11(2). The Public Guardian does not have the power to override the wishes and judgement of the donor and impose its own view of the wisdom or usefulness of the proposed provisions.
The Public Guardian had not been able to identify any conflict between the provisions of Z’s proposed LPA and any specific provision of the Mental Capacity or the LPA, EPA and PG Regulations, or the common law of agency that has been infringed by the provisions in XZ’s LPA. Therefore the Public Guardian was under a duty to register the LPA.