Focusing on the legal nature of the attorney or deputy’s role as AGENT for the person lacking capacity

XZ v PUBLIC GUARDIAN (case reference: [2015] 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.

 

Belinda Schwehr

About Belinda Schwehr

Belinda has been a lawyer (both a barrister and then a solicitor advocate), a law lecturer at a university, and a trainer and consultant specialising in Adults' Social Care legal framework issues. She first became interested in social care law when the Gloucestershire case was running between 1995 and 1997, never having met a real live social worker, before that point! She regards social care as the most interesting field of law she has ever been associated with, combining aspects of public law, the regulation of power, economics, management skills, EU law, procurement, criminal law, incapacity law, land law and contract, and doesn't expect ever to tire of the stuff. If the Care Act is going to be the last word on it, however, she would like to think it was worth all that sitting there and getting fatter whilst thinking about how it should all hang together! She does glass craftwork and house renovations for a hobby, has one son in his twenties, and about 5000 online friends... soon to be 50,000, with any luck!

2 thoughts on “Focusing on the legal nature of the attorney or deputy’s role as AGENT for the person lacking capacity”

  1. Teejay

    My comment is in relation to Deputyship for Welfare not the LPA as mentioned in your article above. As a mother and Deputy for the Welfare of my daughter who has a severe congenital learning impairment, now in her late 30’s, I would like to see various tiers of local authority management, social workers, front line workers trainers/educators and the like understand what the Deputyship for Welfare is and what it entails, as I fear many social/health workers do not. This may be because Deputyship for Welfare is fairly uncommon and is not given lightly by the Court of Protection to family members who are acting on behalf of their disabled loved one who lacks mental capacity.

    1. Belinda SchwehrBelinda Schwehr Post Author

      Council staff ARE supposed to understand about the role of Deputy, I have to say, but I am told that there is no money for training, and no time to expect staff to keep themselves professionally updated. That is why the right to independent Advocacy is so important because Advocates would be there to remind ill-informed and unqualified staff what this status is for. That said, one of the reasons the status is not widely granted is that the Courts have taken the view that there is very rarely any need for a welfare deputy, given that any health or welfare matter would be decided by way of best interests consultation and discussion, by the relevant decision maker in the specific context; and if disputed, the Court would decide the issue by reference to best interests, through an application for a Single Order. The real role, in my view, for a welfare deputy, is to be able to give consent to proposals that need consent; but there are hardly any decisions that the council would take that would require consent, in the end, if the council were responsible for funding the proposal. A deputy can also refuse what a CCG or LA offers, but the danger there is that a robust council will simply apply the consequences of that refusal counting as the needy person’s OWN refusal, and treat itself as discharged from its duty to meet needs. So it is a VERY tricky path to tread, especially when one is emotionally involved! Good luck with it!

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