23 March 2018
In the recent case of Re: XZ  EWCOP 35 Senior Judge Lush criticised the Public Guardian for refusing to register an LPA for property and financial affairs of an international high net worth individual. The LPA contained detailed and carefully drafted restrictions with the donor's complex, significant and international estate in mind. The restrictions were designed to ensure that, with the exception of an emergency situation, the attorneys could not act until the donor had been mentally incapable for a period of at least 60 days. This needed to be confirmed by the professional opinion of two experienced psychiatrists and there was also provision for their opinions to be reviewed and approved by an independent protector. The aim of the restrictions was to ensure that a period of temporary incapacity did not mean that the attorneys would take over significant and complex financial decisions.
The Office of the Public Guardian had refused to register the LPA holding that the restrictions would be difficult to operate in practice. Senior Judge Lush held that, whilst an LPA might be much less effective if it contained restrictions preventing the claimants from acting before the donor's mental capacity had been established (which was the point made expressly in section 5 of the revised LPA forms introduced on 1 July 2015). The restrictions in this case did not contravene the terms of the Mental Capacity Act and supporting regulations and therefore were not ineffective as a matter of law. The Public Guardian's function, when reviewing restrictions under an LPA, was limited to considering whether those restrictions were capable of being given legal effect as part of a valid LPA. If they were, then the Public Guardian had a duty to register. It was not the role of Public Guardian to police the practicality or utility of particular aspects of an LPA. For the use of practitioners the wording of the LPA restrictions is set out in a schedule to the judgment and makes an interesting read.