Court Decides On 60-Year-Old’s Capacity in 2009

28 June, 2022 4 minutes reading time

Decision on Past Capacity: Public Guardian v RI and others [2022] EWCOP 22

This case focuses on whether a 60-year-old male, known as RD, had the capacity in 2009 to execute Lasting Powers of Attorney (LPAs).

Thirteen years after a lasting power of attorney was granted, the Court of Protection ordered the Office of the Public Guardian to revoke it, ruling that RD lacked the mental capacity to create it at the time.

Background

RD was born in 1960 and has a learning disability and a diagnosis of chronic schizophrenia, for which he still receives treatment. In 2009, when the LPA was executed, he lived with his mother, V.

The Property and Financial Affairs LPA appointed RD’s brothers, RI and RO and his mother, V, as attorneys. JH, a legal executive, provided a formal certificate at the time. JH, the legal executive, is married to RD’s brother RO.

RD moved to a care home (where he still lives) when his mother became ill in 2014. Up to that point, his brothers argued, RD was independent and able to dress and look after himself, prepare and eat food and use public transport to get around.

Unfortunately, since leaving home following his mother’s death, RD’s behaviour has changed. Now he must not leave the care home unless he is supervised.

Care Home Reported Concerns

In 2019, worried about the handling of RD’s financial affairs, the manager of RD’s care home contacted the Office of the Public Guardian (OPG).

Obliged to investigate, the OPG produced a report highlighting RD’s incapacity to manage his finances or revoke the 2009 LPA. The report also stressed that RD may not have had the capacity to execute the LPA thirteen years earlier, in 2009.

Whilst RD’s brothers agreed that RD no longer had capacity, they argued that he did have the capacity when the LPA was created. The brothers maintained that legal executive JH correctly assessed RD’s capacity at that time, and since then, and significantly since his mother died in 2015, RD’s mental capacity has seriously deteriorated.

Court of Protection Decision

Mr Justice Poole concluded that RD had a learning disability that affected his decision-making ability. This conclusion was based on RD’s GP records from 2009 and evidence provided by Consultant Old Age Psychiatrist, Dr Ntanda. The judge determined this impairment affected RD both currently and in the past, specifically when he made the lasting power of attorney in 2010

According to Dr Ntanda’s expert opinion, RD’s brain function is impaired, which means that he has a limited understanding of the scope of powers granted in an LPA– now or thirteen years ago when the LPA was drawn up.

Furthermore, Mr Justice Poole found no evidence or notes about the advice given during the brief meeting involving JH, RD’s legal executive, at a solicitor’s office in 2009.

The Court then overruled the presumption of capacity and concluded that RD had not been capable of understanding all the necessary matters at the time of the LPA. Consequently, the OPG was ordered to cancel the LPA registration and appoint a full Deputy.

Assessing Past Capacity

Helpfully, the Court set out the evidence that should be considered when assessing past capacity. This includes testimony from:

1. solicitors or certificate providers who assisted with or prepared LPAs at the time
2. close family or carers who evaluated the individual’s capacity at the time
3. relevant medical expert recorded at the time the LPAs were prepared
4. a professional who has assessed the individual’s capacity now and when the LPAs were prepared

 Impact

This case highlights the importance of assessing capacity when drawing up essential documents like LPAs and Wills. LPAs must be signed by a certificate provider who is sure you understand what you are doing. Limited expertise or skill by the certificate provider or individual drawing up an LPA can cause serious issues later.

If you are unsure about an individual’s capacity, you should obtain a professional assessment. Remember, where an individual’s capacity is in question, every effort should be made not to discriminate.

One final point relates to the time taken to find a remedy. The Court issued its judgment two years after the OPG report. Such delays are not uncommon and can seriously affect the day-to-day life of a vulnerable person.

Our Advice

If you’re considering an LPA or need guidance, seek professional advice. They’ll ensure the documents do what you want them to do and that nothing is left to chance.

For further information, advice or an instant quotation, please contact us. We’re here to help.

Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.

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