LAWYER'S OPINION

DRAFTING CLAUSES INTO LASTING POWERS OF ATTORNEY

October 2009

Practitioners are often faced with clients wishing to add that ‘particular something’ making their LPA special. Special is fine, provided it works and you don’t find yourself in court having to explain your drafting. The little case law that has emerged, by way of drafting guidance, shows a need for sensitivity of clients needs with an understanding of the completion notes.

Ineffective provisions

The drafter in Begum (24 April 2008) attempted to create references to other documents or matters, which unfortunately were removed by the Court:

All decisions about ...my property and financial resources must be driven by...my Personal Welfare LPA Attorneys believe will support my long term interests.

Any decisions affecting assets...more than £5,000...must be...agreed with...X.

...any disagreement between my Personal Welfare LPA and/or Dr X...be resolved by...independent advocate to adjudicate.

In an EPA of Hollins (10 June 2009) these clauses appeared:

My attorney may take decisions on where I shall live...

My attorney may negotiate with Social Services…

My attorney may give consent to medical treatment…

As EPA’s can only be used for financial matters, these were excluded.

Bratt (14 September 2009) appointed two attorneys jointly and severally, saying

"B is only to act as attorney in the event of A being physically or mentally incapable of acting in this capacity".

This was removed as being ‘inconsistent’ with the provisions, as attorney B could have been made the replacement.

Outside Legislation

Jenkins (2 September 2008) concerned appointing a replacement attorney where the original attorneys were

“not available through travel or living abroad…”

In Bates (3 December 2008), two attorneys and a replacement were appointed, with the replacement acting at

“...any time at the election of either attorney”.

Both these inclusions fall outside section 13(6)(a) to (d) of the MCA 2005.

The ‘Named Person’

In Howarth (29 July 2008), the replacement attorney was named as the only person to be notified. Whereas in Goldsmith (30 March 2009), both attorneys were appointed jointly and severally, and also named as notifiable persons.

As an attorney cannot be a notifiable person under Schedule 1 paragraph 2(3) MCA 2005; there was effectively no one named person, requiring a second certificator. Removing the replacement attorney meant the LPA’s could be registered, minus the replacement.

Box Ticking

In Nazran (27 June 2008), the certificator omitted to tick they were independent of the donor, and over 18. The Court using Schedule 1 paragraph 3(2) ‘discretion’, registered the LPA.

In Gibbs (9 September 2008), the certificator ticked saying they had discussed with the donor the LPA, and that ‘the attorneys were not present’, then went on to tick saying the ‘attorneys were present’. A subsequent letter from the certificator clarified the LPA had been discussed with, and without the attorneys present.

Failing to tick ‘who had chosen the certificator’ in Ker (21 September 2009), almost prevented registration as the LPA was not in the prescribed format. The Court exercising it’s discretion, registered the LPA.

Conclusion

Even following the above, no guarantees exist as to clause correctness. Many factors may lead to failures; misunderstanding instructions, legislative conflicts, or simply not following drafting principles. The above demonstrate an overriding necessity to fully explore the clients needs, with what is achievable within drafting confines. Outside of these lie the muddy waters of risk and negligence.