LPAs: Beware of what the future holds for Donees...

In the recent case of Re KC the Court of Protection refused to register two LPAs on the basis that all four of the donees would not be able to achieve cooperation and agreement between them when making decisions and considering the donor’s best interests. The decision is significant, as it represents the first time this approach has been taken, and may well serve to inform future decisions taken both by the Court of Protection when considering the proposed behaviour of donees and by donors themselves when choosing who to appoint as their donees.

In Re KC the donor (P) executed two LPAs, one for the management of their health and welfare and the other for their property and financial affairs. The LPAs appointed all four of P’s daughters as donees, one of whom refused to execute them and objected on the basis that P lacked the requisite capacity due to being diagnosed with Alzheimer’s. P had instructed solicitors to prepare the LPAs who had obtained a capacity assessment, which concluded that P did have capacity to execute the LPAs. P executed the LPAs eight days after the capacity assessment and due to the insufficient evidence available to rebut the presumption of capacity, the applicant conceded her objection.

The Court of Protection was required to determine whether or not the executed LPAs should be registered. Section 22(4) MCA 2005 provides that the Court may direct that an LPA not be registered if any of the grounds set out in section 22(3) MCA 2005, including the future behaviour of a donee contravening his authority or it not being in P’s best interests, apply.

The decision is significant as it is the first time registration of LPAs has not been permitted on the grounds of the future behaviour of the donees. The Court held that the standard of proof required to determine whether or not the future behaviour of the donees constituted grounds to direct that the LPAs should not be registered was to be judged on the balance of probabilities and was not significantly higher than it would be for a case before the civil court.

This case serves as a reminder that donors should give careful consideration to who they want to appoint as their donees. Whilst it is understandable that the desire for privacy forms the basis of the decision to appoint immediate family, there can be consequences to this. In Re KC the Court directed that a panel deputy be appointed to maintain neutrality towards possible familial disputes. Whilst undoubtedly it is a difficult decision to make, donors would do well to consider all their options for potential donees and not just include all of their children, for example, out of a wish to be seen to treat everyone equally or to be ‘fair’. Sometimes keeping things out of the family, where underlying fractious relationships exist, may well be the better option.