The Court of Protection case of Putt
Posted by Kelly Duke on 10th July 2012
It is extremely important when preparing a lasting power of attorney that the correct certificate provider is sought to avoid the Court finding that the requirements of the completion of a valid lasting power have not been fulfilled. It is also equally important to not include restrictions or conditions that the Court will look to sever from the lasting power as they are contrary to the workings and underlying principles of lasting powers of attorney.
The case of Putt heard by Senior Judge Lush is a good example of both of these problems that can arise.
Mrs Putt signed both a property and affairs and health and welfare lasting power of attorney in which she appointed a family member and two solicitors as her attorneys. The lasting powers were prepared by the Limited Liability Partnership of which her professional attorneys were members.
The associate solicitor preparing the lasting powers was employed by the Limited Liability Partnership of which the professional attorneys were members. Under regulation 8(3)(f) of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 a business partner or employee of the donor or attorney cannot act as a certificate provider.
The health and welfare lasting power included a clause which allowed the attorneys to delegate their functions, in writing, to any person, without recourse, as long as the individual had been selected by the attorneys using reasonable care.
The property and affairs lasting power contained the same clause with the additional provision that the donor’s assets could be vested in another as nominee and placed under the nominee’s control.
When the application to register was submitted to the Office of the Public Guardian (“the OPG”) the OPG argued that the certificate provider did not fall within the categories permitted and that the restriction clause was invalid and should be severed from the lasting powers. The OPG and the legal advisers referred the following questions to the Court of Protection as these were questions that could not be answered by the OPG:-
- whether an associate solicitor can be a certificate provider when members of the Limited Liability Partnership employing them are appointed as attorneys; and
- whether the clause permitting the attorneys to delegate was too wide to be valid.
The legal advisers argued that employees of a Limited Liability Partnership were employed by the Partnership and not the individual members and that an associate solicitor could not be considered a business partner. They therefore believed that this meant the associate solicitor could act as certificate provider.
In respect of the power to delegate included in the lasting powers the legal advisers argued that although the default position of an attorney is that they cannot delegate their functions this could be overridden by express authority granted in the lasting power.
The Court considered both questions. In relation to the associate acting as certificate provider it concluded that although it could not determine the precise legislative intent of regulation 8(3)(f) it considered that the term “business partner or employee” was made up of ordinary words in the English language which should be construed in the way that an ordinary sensible person would construe them. For this, and other more complex legal reasons, the Court held that an associate solicitor was an employee of the Limited Liability Partnership. This therefore meant that she could not act as certificate provider as her employers, the members of the Limited Liability Partnership, had been appointed to act as attorneys. For this reason the Court held the lasting powers had not met the requirements for the creation of a lasting power and therefore instructed the Office of the Public Guardian not to register.
Despite finding the lasting powers to be invalid the Court went on to consider the terms of the delegation clause included on both powers. Senior Judge Lush likened the clause included to the appointment of a substituted attorney as it enabled the delegation of all functions. He considered the ability to delegate functions in circumstances that are not necessary or expedient to do so, as long as the attorney took reasonable care in the selection of the individual, were not contrary but almost repugnant to the special relationship of personal obligation and faith that might be expected to exist between a donor and attorney, particularly with a health and welfare lasting power. As such, he ruled that the clause undermined some of the safeguards in the Mental Capacity Act 2005 and therefore the inclusion of the clause in the lasting power could not be in the best interests of the donor.
The Regulations are very clear as to who can act as certificate provider. It is extremely important that the Regulations are followed to ensure that a lasting power is not rejected.
It is also important to ensure that if powers of delegation are included in a lasting power they are not so wide as to, in effect, appoint a substituted attorney, but to allow a nominee to perform a specific curtailed function.
There can be no substitute to fully reading the guidance notes supplied with lasting powers before drafting and signing to avoid a lengthy delay and ultimate redraft.