Lasting Powers of Attorney – too complicated?


Lasting Powers of Attorney – too complicated?A recently-published Court of Protection (COP) case has shone a light on the extent of the powers of the Office of the Public Guardian (OPG) to refuse registration of Lasting Powers of Attorney (LPAs). In XZ v Public Guardian [2015] the matter put before Senior Judge Lush was whether or not the Public Guardian had been correct in not allowing the registration of the LPA in question.

As a matter of law, a donor who decides to give an attorney the power to act on their behalf (through an LPA) may include certain conditions and restrictions as to the document’s use. However, the OPG (who process the applications) are entitled to reject any restrictions or conditions which attempt to unlawfully hamper the power of the attorney. 

The restrictions on the LPA in question ran to some 17 pages and contained detailed and complicated examples of situations in which the attorneys could or couldn’t act. They were aimed at ensuring that the attorneys could only make decisions when the donor had lost mental capacity. For example, the attorneys were required to seek the opinions of two psychiatrists, regarding the donor’s capacity, before the power could be used. 

The OPG rejected the registration of the LPA on the basis that it contravened the provisions of the Mental Capacity Act 2005 insofar as it unreasonably ‘fettered’ the power of the attorney.

After an appeal to the OPG to reconsider was rejected, the donor took his case to the Court of Protection for a ruling. Senior Judge Lush agreed that, whilst the conditions were complicated and burdensome, they could still take effect. The COP’s job, he said, is not to police the practicalities of the individual aspects of the LPA, but rather to simply ensure that they are legally possible. 

Whilst this case has a happy ending, it is a rare thing indeed – history is littered with far more examples of LPAs that have been rejected and have not enjoyed such a favourable outcome. Extreme care must be taken drafting LPAs and, in particular, conditions and restrictions on their power.  

Our experienced Private Client team can guide you through this difficult process and ensure that any pitfalls are avoided. Please contact a member of the team to discuss your Lasting Powers of Attorney.

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