Capacity to execute a Lasting Power of Attorney; new guidance from the Court of Protection
22 Jun 2022
The Court of Protection has given detailed and helpful guidance on how to assess, retrospectively, whether P had capacity to execute an LPA at the time it was executed. In that case, P had a lifelong learning disability, and although he was assessed by a litigation executive who considered him to have capacity, the Court concluded he had not been capable of understanding all the necessary matters at the time of the LPA.
Poole J considered that in order to execute a valid LPA, P much be able to understand all of the following:
a. The effect of the LPA.
b. Who the attorneys are.
c. The scope of the attorneys' powers and that the MCA 2005 restricts the exercise of their powers.
d. When the attorneys can exercise those powers, including the need for the LPA to be executed before it is effective.
e. The scope of the assets the attorneys can deal with under the LPA.
f. The power of the donor to revoke the LPA when he has capacity to do so.
g. The pros and cons of executing the particular LPA and of not doing so.
Helpfully, the Court also gave guidance on what evidence should be sought for the court to determine such questions:
- a. The certificate provider's experience - in particular in making a sufficient assessment of the capacity of a prospective donor who is known to have a learning disability or other impairment which might affect their capacity to execute an LPA – their usual practice or their specific recollections of the making of the LPA;
- b. 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.
- c. Medical evidence, capacity assessments, assessments for benefits, records from carers or activity centres, or other professional evidence roughly contemporaneous with the relevant date when the LPA was executed.
- d. 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 review of relevant medical records, contemporaneous assessments, and the evidence from carers and family members.
This guidance is well overdue from the COP, despite a great many such cases having been determined previously. It will also be of considerable value to contentious probate practitioners considering capacity issues in relation to a will, particularly the comments as to the expertise and experience of the certificate provider (i.e. will draftsman). It sits uneasily with the recent view of the Court of Appeal in Hughes v Pritchard  EWCA Civ 386 as to the value to be given to the will draftsman’s assessment of capacity, and once again the two tests seem to be diverging.
The other alarming fact about this judgment is the date. The application by the Public Guardian was made in April 2020 and this judgment was dated more than 2 years later. On a comparatively simple issue requiring 34 paragraphs of judgment, such delay is indicative of the state of the Court of Protection’s caseload which much be urgently improved.
Aidan Briggs acts and advises in cases concerning mental capacity both in the context of the Court of Protection and when considering past transactions and wills. He was counsel in the leading authority of Ashkettle v Gwinnette  EWHC 2125 (Ch) concerning capacity assessments by solicitors.