The Public Guardian v RI & Ors [2022] EWCOP 22 (7 June 2022)

Although this case relates to capacity to execute an LPA for Property and Financial Affairs, the same principles are likely to apply to an LPA for Health and Welfare and, as the Court noted, there is a lack of judicial authority addressing this issue. This case helpfully identifies the ‘relevant information’ when determining capacity to execute an LPA, as well as the evidence which should ideally be provided to the Court where there is a dispute about past capacity.

In 2009, RD, a 60-year-old man with a learning disability and chronic schizophrenia, purported to execute an LPA for Property and Financial Affairs (the LPA), appointing his brothers, RI and RO, and his mother, V, as his attorneys (the attorneys). 

During an investigation by the Office of the Public Guardian (OPG) in 2019, concern was raised that RD may not have had capacity when he executed the LPA, supported by a report from a Consultant in Old Age Psychiatry. Following unsuccessful attempts to contact the attorneys, the OPG applied to the Court of Protection to consider RD’s capacity to create the LPA in 2009, pursuant to s 9(2)(c) of the Mental Capacity Act 2005 (MCA) and whether consequently, the requirements for the creation of the LPA were met, applying s22(2)(a) of the MCA. Orders were sought to cancel the registration of the LPA and appoint a deputy to manage RD’s property and affairs.   

The attorneys asserted that RD did in fact have capacity to execute the LPA in 2009. They relied on a Legal Executive’s assessment of capacity at the relevant time and the fact that RD had deteriorated significantly since 2009. It was agreed that RD no longer had capacity to either revoke or create a new LPA.

Having regard to Sections 1-3 of the MCA, the Court held that the ‘relevant information’ in relation to the execution of an LPA is:

• The effect of the LPA;
• Who the attorneys’ are;
• The scope of the attorneys’ powers and that the MCA  restricts the exercise of their powers;
• When the attorneys can exercise those powers, including the need for the LPA to be executed before it is effective;
• The scope of the assets the attorneys can deal with under the LPA;
• The power of the donor to revoke the LPA when he has capacity to do so; and
• The pros and cons of executing the particular LPA and of not doing so.

The Court also usefully identified the evidence it would be helpful to have where there is a dispute about past capacity, including:

• The certificate provider’s experience (in this case the Legal Executive), in particular in making a sufficient assessment of capacity, and evidence as to their usual practice or their specific recollections of the making of the LPA;
• Evidence from carers and family members relevant to P’s capacity to execute an LPA at the relevant time and to any changes in P’s condition, relevant to capacity, over time;
• Medical evidence, capacity assessments, assessments for benefits, records from carers or activity centres, or other professional evidence roughly contemporaneous with the execution of the LPA; and
• An assessment by a suitably qualified and experienced person of P’s current capacity and reasoned opinion as to their capacity to execute the LPA at the relevant time, such opinion being informed by the relevant medical records, contemporaneous assessments, and evidence from carers and family members. 

In this case, the Court found that RD did not have capacity to execute the LPA in 2009. The most decisive factors for the Judge appeared to be the lack of evidence from the Legal Executive as to the assessment of capacity in 2009, together with the current opinion of the Old Age Psychiatrist that RD’s learning disabilities are static and he would be expected to have had similar problems with understanding and memory in 2009 as are evident now.