A quirky Court of Protection case from Senior Judge Lush, who seems to have the most interesting life – all of the cases are intricate and involving, and often with rich little details. I am quite envious.
Re XZ 2015
http://www.bailii.org/ew/cases/EWCOP/2015/35.html
The nub of it is that XZ, who is in his seventies and is a high net worth individual, instructed solicitors to draw up a Lasting Power of Attorney. He wanted to ensure that if he lost capacity, that his affairs would be managed, but he was also wanting to ensure that if it was a temporary blip that he would recover from, that decisions would not be made in that interregnum period that he might later regret having been made on his behalf.
There were thus some unusual and very carefully crafted clauses (the fact that the Lasting Power of Attorney makes express provision for decisions involving more than $25 million indicates that there are some significant affairs under consideration here)
- Dominic Lawrance, the solicitor who drafted these provisions, described their purpose as follows:
“The purpose of these safeguards is to ensure that the attorneys do not act (other than in limited emergency situations) until XZ’s incapacity has:
(a) been unequivocally confirmed by psychiatric evidence that is subject to review by the Protector; and
(b) has endured for a minimum period of 60 days.
This has been designed to prevent:
(a) the attorneys taking hasty actions with which XZ might disagree if his lack of capacity were to prove temporary; and
(b) the attorneys acting when there remained genuine scope for doubt as to whether XZ indeed lacked capacity.”
- At the hearing on 7 May 2015, Mr Lawrance added that these provisions were:
“… the product of XZ’s specific instructions. He is generally loath to confer discretions and powers on other people. He likes to be ‘in the driving seat’ and was only willing to sign the LPA if these safeguards were in place.”
When the LPA was lodged with the Public Guardian’s office, the Public Guardian refused to register it, meaning that it would have no effect. The Public Guardian took the view that these restrictions meant that it was not a properly formed LPA. That then led to the Court being invited to decide it.
And here is where the bit about incapacity of the monarch comes in. I had not previously encountered this bit of legislation, and I like it.
XZ’s counsel, David Rees, compared these provisions with those in the Regency Act 1937. Both include a requirement that a third party, who is not medically qualified, should agree with the medical evidence before the powers conferred on the delegate become exercisable. Section 2 of the Regency Act prescribes the following procedure in the event of the total incapacity of the Sovereign:
“If the following persons or any three or more of them, that is to say, the wife or husband of the Sovereign, the Lord Chancellor, the Speaker of the House of Commons, the Lord Chief Justice of England, and the Master of the Rolls, declare in writing that they are satisfied by evidence which shall include the evidence of physicians that the Sovereign is by reason of infirmity of mind or body incapable for the time being of performing the royal functions or that they are satisfied by evidence that the Sovereign is for some definite cause not available for the performance of those functions, then, until it is declared in like manner that His Majesty has so far recovered His health as to warrant His resumption of the royal functions or has become available for the performance thereof, as the case may be, those functions shall be performed in the name and on behalf of the Sovereign by a Regent.”
It is always nice to be able to say “My client asked for these clauses to be in place, because he wanted similar protection to that provided to the Queen” – I don’t imagine the chance to say it arises that often, but if you can deploy it, why not?
So, if the Queen (or any future Monarch) lost their capacity to make decisions, the procedure would mean that on advice of physicians, three or more of the following would need to make a declaration of incapacity – currently Prince Philip, Michael Gove (!), John Bercow (!), the Right Honourable Sir John Thomas, the Right Honourable Lord Dyson. And if three or more of them do that, then the Queen’s functions would be removed from her and given to a Regent. And she’d only get the powers and functions back if three or more of them agreed.
Ladies and gentlemen, that’s a statutory recipe for a coup in Great Britain. If you wanted to have a coup, that’s your legal route map.
[I’m a bit scared that Michael Gove is one third of the way to being able to seize all power from the Queen, if he can just talk two of the others into becoming ultimate rulers of the UK by his side. At least it isn’t Grayling I suppose. Given that the Lord Chancellor could sack the Master of the Rolls and Lord Chief Justice and appoint his own people…I should stop thinking about this]
I am scratching my head as to whether the Mental Capacity Act 2005 with its presumption of capacity disintegrates the Regency Act. The Regency Act is not in the list of repeals. But the Mental Capacity Act 2005 is said to cover people, and there’s no clause that says “people other than a reigning monarch”
So I already like the case for raising that bit of constitutional intrigue.
Senior Judge Lush had this to say in relation to why the judgment was published
I can’t imagine that the general public would have the slightest interest in this judgment, but its publication may be of interest to professionals who specialise in this area of the law and draft LPAs on a regular basis, and also to people who are considering making an LPA themselves, and for this reason I shall permit its publication.
That rather dampens my spirits, the Judge telling me that the general public won’t be interested, but it interested me. [And yes, I should get out more]
So, what’s the decision?
- XZ acknowledges that his LPA will be less effective because of these provisions but, nevertheless, he wishes them to remain as an integral part of the registered instrument for his own reassurance and peace of mind. Some people may think that this is unwise, but it is his will and preference and it should be treated with respect. The Public Guardian has no right to make a paternalistic judgment on his behalf and decide that it would be in his best interests for these provisions to be severed.
- I agree with Mr Rees’s submission that:
“With respect to the Public Guardian, it is no part of his statutory duties to police the practicality or utility of individual aspects of an LPA. In the context of section 23 and Schedule 1, paragraph 11 of the MCA 2005 the phrase “ineffective as part of a lasting power of attorney” clearly means “not capable of taking effect, according to its legal terms as part of an LPA.” Examples of provisions which would be ineffective 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 do by an attorney (such as make a will or vote).
(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).
Neither the court nor the Public Guardian are concerned with whether a restriction that does not contravene the terms of the MCA 2005 may pose practical difficulties in its operation.”
- The Public Guardian’s function under paragraph 11 of Schedule 1 to the Act is limited to considering whether the conditions and restrictions are (a) ineffective as part of an LPA or (b) would prevent the instrument from operating as a valid LPA.
- If he concludes that they cannot be given legal effect, then he is under a duty to apply to the court for a determination of the point under section 23(1). Otherwise he has a duty to register the power.
- Neither Miss Chandoo’s witness statement nor Miss Davidson’s submissions have identified any specific provision in the Mental Capacity Act 2005, or the LPA, EPA and PG Regulations, or the common law of agency that has been infringed by the provisions in XZ’s LPA.
- For these reasons, and pursuant to section 23(1) of the Act, I declare that XZ’s LPA does not contain any provisions which: (a) would be ineffective as part of an LPA; or
(b) would prevent the instrument from operating as a valid power of attorney.
- I also order the Public Guardian to register the LPA.
suesspiciousminds 
I be quite honest with you I do not like Judge Lush as I had a hearing with him concerning my mother and he let the proceedings get out of hand and allowed my mother’s solicitor who was a witness and wrote a statement, not to be present at the hearing so as I could not question why my mothers solicitor refused to see her client. I also found out at a later date my brothers were also paying large amounts of case to my mothers solicitor (provable at the very least £2000) to block me from also becoming my mothers Attorney.
What you might be able to make clear to me is what is meant by lacking capacity?
Are we talking here about losing one’s financial capacity or losing one’s mental capacity?
Judge Lush and my mother’s Barrister basically claimed that there is no real difference between these two conditions.
Whereas I know that these two conditions are worlds apart from each other.
My mother just suffered from short term memory due to a stroke and I do accept that due to the short term memory loss my mother suffered she can be said to have lost her financial lcapacity, for this reason alone, because she could not remember or became confused as to if she paid her bills or not.
But my mother did not lose her Mental Capacity meaning although she suffered from short term memory she could still make decisions my mother had lost none of her intelligence when she found herself becoming handicapped with short term memory.
I guess what is rattling my cage is lack of capacity is not being defined as it should be in cases like these as it should be.
Dear Paul
There would be a difference between those two concepts. Essentially, the Mental Capacity Act 2005 has these key strands
1. The starting point is that a person has capacity to make their own decisions unless it is proven otherwise
2. People have the right to make decisions that other people would think were foolish or unwise, provided that they have capacity to do so (simply making what others might view as a poor decision does not in itself prove that a person lacks capacity)
3. In order to lack capacity to make a decision a person must be unable to :-
(a) understand the relevant information
(b) retain it
(c) weigh it up as part of the decision making process
(d) communicate it
And on each of those matters, a person can be given help to get to a point where they do have that capacity.
So for example on money, a person could have capacity to decide to pay a painter £10,000 to paint his ceiling, even though most onlookers would consider that to be a very foolish thing to do. If the Court was deciding that that person lacked capacity to make the decision, they’d need to see that the person either didn’t know that the job could be done much more cheaply, or couldn’t remember that, or didn’t weigh up when making the decision how much money the person had in the bank and how spending £10,000 on that would affect them.
You COULD be deemed to have lost capacity on the basis of inability to remember things, even though your reasoning and intelligence remained. [As with your mother] But one would expect that this would be a last resort and that help would be given to help the person with methods of retaining the information before that step.
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