The Public Guardian v RI & Ors [2022] EWCOP 22 (07 June 2022)

September 14, 2022 – Private Client

Christine Marsh

The question in this Judgment was whether a donor under an LPA for Property and Affairs executed in 2009 had capacity to execute it.

RD was a 60 year-old male who had a learning disability as well as chronic schizophrenia and he resided in a care home and was subjected to a DOLS Order. The LPA appointed RD’s brothers, RI and RO, and his mother, to be his attorneys.

At the time of the execution of the LPA, RD resided with his mother and he resided with she became unwell in around 2014 and he moved into a care home. His mother subsequently died in 2015. In 2019 the care home manager contacted the OPG due to concerns about the management of RD’s financial affairs. This in turn lead to an investigation being carried out by the OPG.

A capacity assessment on P carried out in 2019 by Dr Ntanda concluded that P did not have capacity to manage his finances or revoke the LPA and it was most likely that he did not have capacity to execute the LPA in 2009.

For the Court to consider the issue of past capacity, various principles of the MCA 2005 had to be looked at, as well as previous cases and Mr Justice Poole proceeded on the basis that the relevant information regarding the execution of an LPA was:

  1. The effect of the LPA.
  2. Who the attorneys are.
  3. The scope of the attorneys’ powers and that the MCA 2005 restricts the exercise of their powers.
  4. When the attorneys can exercise those powers, including the need for the LPA to be executed before it is effective.
  5. The scope of the assets the attorneys can deal with under the LPA.
  6. The power of the donor to revoke the LPA when he has capacity to do so.
  7. The pros and cons of executing the particular LPA and of not doing so.

The evidence was looked at also but found to be relatively sparse and so after considering previous cases and the principles of the MCA 2005, it was Mr Justice Poole found that one of the requirements for the creation of the LPA had not been met, that of the requirement under s.9(2)(c), which was that when RD executed the instrument, he had capacity to execute it. Therefore, under paragraph 18 of Schedule 1 of the MCA 2005, Mr Justice Poole directed the Public Guardian to cancel the registration of the LPA and for a full Deputy to be appointed to manage RD’s property and affairs.

The full Judgment can be read here.

If you have any questions regarding this summary case law please contact Christine Marsh here.