New Judgement on LPA Replacement Attorneys

Court rejects replacement attorneys’ appointment

The Lasting Power of Attorney documents for property and financial affairs and for health and welfare permit the donor to appoint replacement attorneys. Replacement attorneys are people who can step in to act if the original attorneys die or are unable to act.

It is not compulsory to appoint replacement attorneys but many people decide that it’s wise to do so. However, there can be complications if the replacement attorneys are not appointment correctly. Sometimes problems arise because the donor fails to follow the rules when making the Lasting Power of Attorney, but a recent Court of Protection case has revealed the Mental Capacity Act 2005 itself can lead donors to make mistakes when appointing replacement attorneys.

The background to the case (Office of the Public Guardian v Boff and another (2013) MHLO 88 (LPA)) is that the Donor decided she wanted to appoint three replacement attorneys but she did not want them all to be able to act at the same time. She, therefore, included a condition that her replacement attorneys could only act one at a time, in succession.

When the Donor applied to register her LPA for Property and Financial Affairs the OPG refused to register it and applied to the Court of Protection to have that part of the document removed. The Donor objected and said she had followed the rules laid down in s10(8) of the Mental Capacity Act 2005 which deals with the appointment of replacement attorneys.

The wording of s10(8) MCA 2005 is a bit ambiguous. The Donor argued that it could be interpreted as allowing for the appointment of successive replacement attorneys. The OPG guidance states that you can’t do so.

The Court of Protection had the task of deciding who was right – the Donor or the Office of the Public Guardian. In reaching his decision Senior Judge Denzil Lush considered the background to the Mental Capacity Act 2005. He noted that the possibility of appointing successive replacement attorneys had been rejected.

Unfortunately, due to what seems to have been an error when the Mental Capacity Bill was drafted s10(8) contains ambiguous wording. S10(8) fails to make it expressly clear whether successive replacement attorneys can or can’t be appointed.

The judge agreed with the Donor, Dr Boff that the legislation is ambiguous but nevertheless confirmed that replacement attorneys can’t be appointed to act in succession. Dr Boff’s attempt to include a condition that her replacement attorneys could only act one at a time was ordered to be struck out from her LPA.

What should you do if you want replacement attorneys to act in succession?

Clients regularly ask me how their replacement attorneys are permitted to act. There certainly seems to be uncertainty about the extent to which a donor can change, limit or expand their authority.

You could consider an alternative solution to Dr Boff’s problem. It’s effective but not cheap. The answer is to make several Lasting Powers of Attorney. In each document, you would need to state the point at which that particular replacement attorney could take over. You must choose your words carefully or you could fall into a similar trap that caught Dr Boff.

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