The Public Guardian v Miles & Ors
2014
COURT OF PROTECTION
United Kingdom
CORAM
- Senior Judge Lush
Areas of Law
- Probate and Succession
2014
COURT OF PROTECTION
United Kingdom
CORAM
AI Generated Summary
Mrs. Miles executed two LPAs appointing her family members as attorneys with specific instructions about joint decision-making and reappointment. The Public Guardian sought a ruling on certain provisions' validity. The court held that reappointment of original attorneys and joint decision-making provisions were partially ineffective and ordered their severance, emphasizing the need for compliance with the Mental Capacity Act 2005.
JUDGMENT
Senior Judge Lush:
This is an application by the Public Guardian for the court to determine the validity of a provision in a Lasting Power of Attorney (‘LPA’).
Section 23(1) of the Mental Capacity Act 2005 provides that “the court may determine any question as to the meaning or effect of a lasting power of attorney or an instrument purporting to create one.”
I have referred to the donor of the LPA by her surname, rather than by her initials. When the Mental Capacity Act 2005 came into force the Court of Protection and the Office of the Public Guardian (‘OPG’) agreed that decisions involving the validity of a provision in an LPA would be recorded on the OPG’s website using the donor’s surname. In view of the anticipated volume of cases, it was considered that this would be a clearer point of reference than a set of initials.
The background
Mrs Miles was born in 1937 and lives in Somerset.
On 27 November 2013 she executed an LPA for property and financial affairs and an LPA for health and welfare, in which she:
appointed her husband and daughter to be her attorneys;
appointed her son to be a replacement attorney;
directed the attorneys to act jointly for some decisions and jointly and severally for other decisions (her specific instructions are set out in paragraphs 10 and 11 below) ;
selected Option A in the LPA for health and welfare, which says “I want to give my attorneys authority to give or refuse consent to life-sustaining treatment on my behalf”;
imposed restrictions or conditions in each LPA;
gave guidance to the attorneys;
did not permit the attorneys to charge for their services; and
named David John Satchell of Amicuslaw Solicitors, Regional Rural Business Centre, Market Way, North Petherton, Bridgwater, Somerset TA6 6DF as the only person to be notified when an application was made to register the LPAs.
Mr Satchell not only drew up the LPAs but also witnessed Mrs Miles’s signature and acted as the certificate provider.
An application was made to the OPG to register the LPAs and they were registered on 17 June 2014.
The Public Guardian had concerns about the wording of various provisions in the LPAs, but, rather than leave Mrs Miles without the support of an LPA while the matter was being determined by the court, he considered that it would be in her best interests to register the LPAs and then apply to the court for a formal ruling as to whether the provisions were valid.
The provisions
The provisions which gave the