In a recent case¹, the issue of capacity arose in the context of ‘past’ capacity, concerning the execution of an LPA around a decade previously.

The protected person (P) was a 60-year-old man with a severe learning disability and was also receiving treatment for chronic schizophrenia. He was also subject to deprivation of liberty restrictions and could not leave his care home, where he had lived since around 2014, without supervision because of continuing incidents.

The LPA, appointing his two brothers and his mother (who subsequently died) was executed in December 2009. A legal executive signed the LPA form as the certificate provider and the formalities were complied with.

However, the care home managers raised concerns in 2019 about the management of P’s financial affairs and the attorneys’ delegation of their duties to the wife of one of the attorneys (though there were no suggestions of any fraud or misconduct). The OPG started an investigation and a Court General visitor visited P and produced a report. In that report, concerns were expressed that P did not have capacity to execute the LPA in 2009. A consultant old age psychiatrist assessed P a few weeks later who concluded that it was “most likely” P lacked capacity at the time he executed the LPA.

Poole J said there was evidence both for and against the case that P lacked capacity but concluded, on balance, that he lacked the required capacity. A deciding factor in his determination was the psychiatrist’s evidence that even when he tried to explain matters to P, he could not understand what an LPA was; he had not recalled who his attorneys were; and he could not understand what authority they had.

The judge also observed that the certificate provider had mentioned nothing on the form about P having a learning disability; nor was there evidence of previous experience dealing with donors with a learning disability.

The judge concluded on the evidence that P did not have the ability to understand, retain or weigh up the information given to him by the certificate provider at the time. The presumption of capacity was displaced, P lacked capacity to execute the LPA - and a direction was made to cancel its registration.

What were the implications for the attorneys’ actions?

Under s22 of the Mental Capacity Act 2005, a purported LPA which is invalid for failing to comply with capacity (or other) requirements confers no authority on the purported attorneys. This could potentially lead to significant consequences for attorneys under an invalid LPA, as they could face claims against them personally in relation to the exercise of their purported authority.

However, if the attorney did not know an LPA was not legally created or that there were circumstances which would have terminated their authority, the attorneys are protected from personal liability (s14). Transactions carried out in those circumstances remain valid.

Here, Poole J found no suggestion that the attorneys knew P did not have the necessary capacity to execute the LPA. Indeed, they had relied on the advice of the legal executive who was the certificate provider, therefore they were protected from liability.

The Public Guardian v RI & Ors [2022] EWCOP 22