29 April 2015

Lasting Powers of Attorney — can you exclude the court and OPG?


Julia Abrey
Partner | UK

In Public Guardian v VT [2014] EWCOP 52 an application was made to revoke a Lasting Power of Attorney for property and financial affairs. The LPA contained a restriction which stated 'I do not want any public authority or body or their employees or contractors to handle my money, financial affairs or property at any time and I do not want them to obtain any information about these at any time'.

Senior Judge Lush commented that this restriction should have been severed before the LPA was registered as contrary to public policy. It sought to stifle any investigation into the donee's misconduct, prejudice the administration of justice and oust the jurisdiction of the Court. In reaching this conclusion, Senior Judge Lush considered Article 8.1 of the European Convention on Human Rights which gives the right to respect for private and family life, home and correspondence.

The Judge made the point that Article 8 right was qualified and that, in certain circumstances, public authorities could interfere with the private and family life of an individual. This could happen where such interference is necessary 'in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others'. The Senior Judge felt that it was appropriate for the restriction to be severed in this case as public policy required that the conduct of a donee under an LPA should be subject to supervision and scrutiny which would not be the case if the restriction were allowed to stand.

Category: Article