Mrs Justice Lieven DBE:
This is an appeal from a decision of HHJ McCabe sitting at Wolverhampton in the Court of Protection. It raises a discrete but important point about the duties of a person who provides a certificate under paragraph 2(1)(e) Schedule 1 of the Mental Capacity Act 2005 ("MCA").
The Judge found that that the Lasting Powers of Attorney ("LPAs") were invalid and should be cancelled. The appeal is brought by TA who is the daughter of the donor, KA. TA is the sole attorney under the disputed LPAs. The Respondent is the Office of the Public Guardian ("OPG").
The Appellant was represented by Faye Collinson and the OPG by Marisa Lloyd. I would like to thank both of them for their clear and to the point submissions.
The statutory scheme
Section 9 of the MCA sets out the requirements for a valid LPA:
Section 9(2) therefore sets out three requirements for a valid LPA. Firstly, the appointment of valid donees under section 10 (s.9(2)(a)). Secondly, that the donor must be over 18 and have capacity (s.9(2)(c)); that the LPA must be made in accordance with Schedule 1 of the Act (s.9)(2)(b)). It is this third requirement which is in issue in the present case.
Schedule 1 is headed "Lasting Powers of Attorney: Formalities". Paragraphs 1 and 2 state:
The critical paragraph for present purposes is paragraph 2(1)(e).
Paragraph 1(1)(c) states that "An instrument is not made in accordance with this schedule unless…. any prescribed requirements in connection with its execution are satisfied." The requirements are set out in regulation 9 of the Lasting Power of Attorney etc Regulations 2007 (2007/1253):
Section 22 sets out the powers of the court in relation to the validity of an LPA:
The background and evidence
KA is 92 years old. She has lived in a care home since May 2021. She has three children, her daughter the Appellant TA, and two sons. She previously executed an LPA for property and affairs in favour of all three children on a joint and several basis on 5 June 2019. On 27 July 2020 KA revoked this LPA by a deed of revocation.
On 12 January 2021 KA made an LPA for property and affairs which was registered with the Public Guardian on 16 March 2021 and on 1 April 2021 she made an LPA for health and welfare which was registered on 22 June 2021. Both of these LPAs appointed TA as the sole attorney.
In respect of both LPAs the certificate provider was X. X is TA's ex-mother in law, and a close family friend of KA. The certificate is in standard form.
In September 2021 KA's son HC instructed solicitors with a view to revoking the LPAs in favour of TA, and executing new LPAs in favour of all three children. The solicitor attended KA and formed the opinion that she lacked capacity to execute new LPAs.
There was then an investigation undertaken by the OPG as to the making of the LPAs. The LPAs were suspended by order of DJ Grosse on 30 June 2022.
The OPG investigator asked X various questions and she replied in writing. The Judge at J27-30 sets out those communications and it is necessary to repeat them in full here.
This letter is dated 1 December 2021.
Rachael Heeley, in her capacity of a Court of Protection Visitor, visited KA on 7 December 2021 and had a conversation with her via Zoom. I set out below some sections of the record of the visit that appear to me to be relevant to the issue in this case. They are partial quotes, but there is no inconsistent content in the full note, KA saying the same thing on a number of occasions:
The Judgment
The Judge carefully set out the relevant law and facts. She recorded the parties' submissions which albeit in shorter form were the same as those made to me. She set out her conclusions at J37-42:
The submissions
Ms Collinson submitted that the statutory scheme set out in clear terms what requirements needed to be met in order for an LPA to be valid. In respect of the certificate provider the only requirement under paragraph 2(1)(e) was for the provision of the certificate. So long as that was provided then that was sufficient for the purposes of legality. She relied on the precise statutory language and said the Court should go no further.
She relied on the fact that this is a very detailed statutory scheme, not merely in the MCA itself but also in the Regulations. Regulation 9 gives a precise order of steps that are to be taken for the LPA to be valid but does not state that the certificate provider has to take any particular steps, or that the Court has to ensure that the requisite opinion is formed in any particular way.
She submits that the Judge erred in J37-38. Firstly, the Judge incorrectly suggested that the certificate providers had to "provide an opinion", whereas in fact paragraph 2(1)(e) merely requires the provision of the certificate and not the provision of the opinion.
Secondly the Judge therefore wrongly considered "this opinion is one of the requirements of the creation of an LPA…", which is (she submits) wrong because there is no requirement for the opinion.
Thirdly, the Judge wrongly introduced the concept that the opinion must be a "valid" one, see J43 and imposed various obligations on the certificate provider at J41, which do not appear in the statute. Ms Collinson submits that the Judge stepped far outside the parameters of the MCA and the Regulations.
She sought to draw a distinction between formal and substantive validity of an instrument. In this case the OPG is not challenging KA's capacity at the time of the LPAs and therefore the substantive validity of the LPA is not in issue. The only issue is the "formal" validity and that is met under the statutory scheme by the fact of the certificate.
Ms Collinson submitted that the Judge's approach undermines the scheme of the MCA. There is a presumption in the MCA in favour of the donor having capacity. The Judge's approach is that even though the donor has capacity the LPA is still invalid because the certificate provider failed to undertake sufficient checks. This would set a troubling precedent and undermine the presumption of capacity.
Ms Lloyd, on behalf of the OPG, submitted that paragraph 2(1)(e) requires that the certificate provider has the requisite opinion. The Judge made no error in her approach. The certificate is fundamental to the formal validity of the LPA, and the requirements as to the opinion are not limited to the issue of capacity. She relies upon the terms of paragraph 2(1)(e) for the various matters that the certificate provider must have formed an opinion about.
She argued that if the Appellant's submissions are taken at face value it would not be possible to make any enquiry about the opinion, for example whether the certificate provider had even spoken to the donor; knew anything about her wishes or intentions, or understanding; or did not speak the same language as the donor. Such a result would be absurd and would undermine the important protections set out in Schedule 1.
Conclusions
This is a case of statutory interpretation. As in any such case the Court has to consider the statutory language; the overall statutory scheme and the mischief or purpose to which the provision is aimed.
Paragraph 1(2)(e) requires the provision of a certificate, but it also requires that certificate to have particular content. The content is that the certificate provider has an opinion as to three specific matters. Therefore, on a pure black letter law approach, a valid certificate must be based on an opinion as to those three matters. If the evidence showed that the certificate provider did not have such an opinion because, for example, they had not spoken to the donor, then there would not be a valid opinion.
It therefore follows from the words themselves that the Court is entitled to check that the requisite opinion has actually been formed. If this stage of the analysis is not accepted, and Ms Collinson's argument is taken at its highest, then paragraph 1(e) becomes a nonsense. The mere provision of a certificate in the right form cannot be sufficient on its own.
I do not accept Ms Collinson's submission that the Court can only look at the existence of the certificate and no more. For the certificate to meet the requirement of the MCA it must be a certificate as to the matters in paragraph 2(1)(e). This follows from the terms of s.22, which allows the Court to determine whether any of the requirements for the creation of the LPA have been met.
It is then necessary to consider the statutory context and the mischief being addressed. The certificate is an important part of the procedure to ensure that a valid LPA has been entered into. The nature of the scheme is that validity turns not merely on the provision of certain documents, but that those documents themselves provide reassurance on a number of key matters. The whole purpose of the MCA is to make provision for the protection of those who have lost mental capacity, or who may do so, as we all may, in the future. The latter issue is dealt with, inter alia, through the making of Lasting Powers of Attorney. Those documents are of the utmost importance in the making of future decisions for people who subsequently lose capacity.
Paragraph 2(1)(e) does not merely concern whether the donor has capacity. It is also there to provide some safeguards that the donor understands the instrument, is not subject to fraud or undue pressure and there are no other barriers to the LPA. Plainly these matters go beyond capacity. The donor might have capacity, but not actually have read the LPA and therefore not understand its purpose or scope. This would not later be grounds to set aside on the basis of lack of capacity, but is an important safeguard in the process.
The scheme of the MCA, and paragraphs 2(1)(e) also gives protection to the donor at the stage of making the LPA. Although the power to set aside exists in s.22, in practice that power rests on someone raising the issue of validity after the making of the LPA. In many cases such an issue will not be raised, perhaps because there is no other person concerned and the OPG is not aware of the circumstances. Therefore the power in s.22 does not mean that a purposive and careful approach should not be taken to the safeguards in paragraph 2(1)(e).
For all these reasons I consider that the Judge's approach was correct.
It was not argued before me that if the Judge was correct in her analysis of the law, I should still uphold the LPA because the evidence showed X had formed the requisite opinion. Given that it was not argued, and I have accepted and agreed with the Judge's legal analysis, I do not consider this issue further and accept the Judge's conclusions on the facts.
I therefore refuse the appeal.