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Page and summaryDate added to siteCategories
Jimoh Adun of Nieko Solicitors (SRA decision: control of practice) [2016] MHLO 23 — (1) The SRA decided on 15/7/15 (decision published 24/7/15) that Mr Adun's practising certificate for 2014/2015 would be subject to the following conditions: "(a) Mr Adun is not to be a recognised sole practitioner, manager or owner of any authorised body or authorised non-SRA firm; (b) Mr Adun shall immediately inform any actual or prospective employer and relevant authorised body's authorised signatory and/or organisation contact of these conditions and the reasons for their imposition." (2) Reasons: "Jimoh Adun is subject to Regulation 3 of the SRA Practising Regulations 2011. He was the sole manager and owner of the firm Nieko Solicitors, which was subject to an intervention decision dated 5 December 2014. The grounds for intervention were abandonment of practice and that the intervention was necessary to protect the interests of clients (former or potential) of Mr Adun. The SRA had been advised that he was being investigated by the Legal Aid Agency. His conduct is currently ..→2016-07-302016 cases, Brief summary, No transcript, SRA decisions
DD v Dudley and Walsall NHS Trust [2014] MHLO 145 (PI) — The Claimant's partner committed suicide while being detained under s2 Mental Health Act. The Claimant and the deceased were not married but had been cohabiting for a number of years. The deceased was also the Claimant's full time carer as a result of the spinal fusion surgery the Claimant had undergone some years previously. The deceased had a history of mental illness which was depressive in nature. At the time of his death his mental health had deteriorated significantly. While detained under the Mental Health Act, the deceased was initially assessed as not having capacity nor insight into his illness; he was also becoming aggressive and a risk to himself and others. However, an assessment by the duty doctor the following night did not indicate that the deceased was a self-harm risk, nor were there any known acts/plans since admission. Later that evening the deceased killed himself. The Trust carried out a Serious Untoward Incident investigation which highlighted a number of ..→2015-04-132014 cases, Brief summary, Miscellaneous, No transcript
Jimoh Adun of Nieko Solicitors (SRA decision: closure) [2015] MHLO 4 (SRA) — The SRA decided to intervene because Jimoh Adun had abandoned his practice at Nieko Solicitors, and it was necessary to protect the interests of clients (former or potential) and any beneficiaries of any trust of which he is or was a trustee. The SRA was unable to gain access on 8/12/14 but gained access three days later with a court order. 2015-01-292015 cases, Brief summary, No transcript, SRA decisions
LBX v K, L and M [2010] EWHC 2422 (COP) — A summary will be added when the judgment has been located. 2014-11-082010 cases, Missing from Bailii, No summary, No transcript, Other capacity cases
Lucia Benyu (SRA decision: control of practice) [2014] MHLO 99 (SRA) — (1) The SRA decided that as Lucia Benyu, née Ndoro, was in an Individual Voluntary Arrangement, and her conduct was under investigation, the following conditions on her 2013/14 practising certificate were necessary: (a) she may act as a solicitor only as an employee; which role has first been approved in writing by the SRA; she is not a sole practitioner, or a manager or owner of any authorised body or authorised non-SRA firm except as a minority share owner in Peters Legal Limited (SRA ID 607645); (c) she does not hold, receive or have access to client money or have responsibility for any client money; (d) she is not a signatory to any client or office account and does not have the power to authorise electronic payments or transfers from any client or office account; (e) Mrs Benyu shall immediately inform any actual or prospective employer of these conditions and the reasons for their imposition. (2) She was subsequently struck off the roll of solicitors by an order of the ..→2014-10-272014 cases, Brief summary, No transcript, SRA decisions
Re X (anonymity) [2014] EWCA Civ 1009, [2014] MHLO 90 — The press has reported this case as follows: a restricted transferred prisoner patient in medium security judicially reviewed the Secretary of State's refusal to grant permission for unescorted community leave; Cranston J refused to make an anonymity order, a decision upheld by the Court of Appeal (Lord Dyson MR; Maurice Kay LJ, VP; Floyd LJ). It is understood that an appeal will be made to the Supreme Court. 2014-08-112014 cases, Brief summary, No transcript, Re X (anonymity) [2014] EWCA Civ 1009, [2014] MHLO 90
Re X (amputation) [2014] MHLO 89 (CA) — The Court of Protection had decided that X lacked capacity to consent to a below-knee amputation to treat her foot infection, and that this treatment was in her best interests. The Court of Appeal refused her son permission to appeal. (1) The judge's decision on capacity was correct. (2) The judge was also correct on best interests: there was no need for further tests to determine best interests; the medical experts had no difficulty reaching their conclusions and there was no disagreement; the alternatives were unsuitable (for example, antibiotics would cease to be effective); the son was worried about death in theatre, but in fact surgery gave X the best chance of survival; her condition was deteriorating and the infection would spread without amputation. (Summary based on Lawtel report of ex tempore judgment - transcript not available at time of writing.) 2014-08-112014 cases, Best interests, Brief summary, No transcript
Re Davies [2012] MHLO 184 (LPA) — The donor appointed four attorneys, A, B, C and D, to act jointly and severally, and imposed the following restriction: "The appointment of C and D shall not take effect unless I am mentally and/or physically incapable of managing my affairs and the appointment of C shall not take effect unless she has been in my employment within the period of one month preceding my loss of capacity to manage my affairs." This restriction was severed on the ground that the appointments of co-attorneys cannot be activated at different times. [OPG summary - LPA case.] 2014-04-292012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Buckley [2013] MHLO 144 (LPA) — The donor made an LPA for property and financial affairs and included the following provision: "Assets should be used firstly to ensure the well being and comfort of [my wife] and secondly to meet any urgent need of the families of the Attorneys and thereafter managed until distributed in accordance with the terms of my will." On the application of the Public Guardian the provision was severed. Although the attorneys would have power to maintain the donor's wife (see Re Bloom above), this should not be the priority of the LPA because section 1(5) of the MCA provides that "An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests." The attorneys had no authority to meet the needs of their families, as the donor was not under any legal obligation to maintain them. Any maintenance of the families would be a gift which would potentially fall outside section 12 of the MCA 2005. [OPG summary - LPA case.] 2014-04-292013 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Rider [2013] MHLO 143 (LPA) — The donor made an LPA for property and financial affairs which included the following provision: "No political donations to be made other than to the conservative party." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. While section 12(2)(b) permits the making of gifts to charities (subject to certain conditions), donations to the conservative party, or any other political party, would not fall within that provision. [OPG summary - LPA case.] 2014-04-292013 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Barac [2013] MHLO 142 (LPA) — The donor made an LPA for property and financial affairs which included the following provision: "After having taken full regard for my financial welfare and security I want my attorneys to take sensible steps to protect my estate from the effects of taxation [e.g. Inheritance Tax] and be able to create Trusts where beneficial." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2014-04-292013 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Bishop [2013] MHLO 141 (LPA) — The donor appointed attorneys to act jointly and severally and included the following provision: "I direct that my attorneys shall endeavour to act jointly on decisions wherever possible. They must only act severally when all practicable steps to act jointly have been made without success. If an attorney must act severally then that attorney must consult the other before making the decision and keep the other informed of any decision made." On the application of the Public Guardian the provision was severed as being incompatible with a joint and several appointment. Although in the guidance section, it was expressed in mandatory terms and was in substance a restriction. [OPG summary - LPA case.] 2014-04-292013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Lucia Benyu of Peters Legal Limited (SRA decision: prosecution) [2014] MHLO 15 (SRA) — On 28/1/14 the SRA published their 30/5/13 decision to prosecute, before the Solicitors Disciplinary Tribunal, Lucia Benyu (who until 18/4/2013 was the director of Peters Legal Limited, one of the largest mental health law firms). The Tribunal certified that there is a case to answer in respect of allegations which are or include that she: (1) failed to maintain properly written up and accurate accounting records; (2) authorised or permitted improper withdrawals of client money from client account; (3) failed promptly or at all to remedy the breaches; (4) failed to manage the financial affairs of the firm either effectively or properly; (5) submitted misleading correspondence and/or documents to third parties; (6) created correspondence and/or documents; (7) continued to act on behalf of clients when there existed a conflict between her own interests and those of her clients; and (8) failed to provide to a client adequate information regarding costs. 2014-03-162014 cases, Brief summary, No transcript, SRA decisions
Re P (Caesarian - Royal Free) [2014] MHLO 2 (COP) — This case is now at: Royal Free NHSFT v AB [2014] EWCOP 50, [2014] MHLO 127. 2014-02-052014 cases, No transcript
Re P (Caesarian) [2013] MHLO 127 (COP) — The press has reported this case as follows: Peter Jackson J decided that, in the event of a Caesarian scar rupturing during labour, it was in P's best interests that doctors could intervene and perform a Caesarean section. 2013-12-302013 cases, No summary, No transcript, Other capacity cases
Re Ian Brady [2013] MHLO 89 (FTT) — After a public hearing the tribunal issued a notice on 28/6/13 that: 'Mr Ian Stewart Brady continues to suffer from a mental disorder which is of a nature and degree which makes it appropriate for him to continue to receive medical treatment and that it is necessary for his health and safety and for the protection of other persons that he should receive such treatment in hospital and that appropriate medical treatment is available for him.' The full reasons, dated 11/12/13, were published on 24/1/14: (1) When deciding to hold a public hearing the tribunal had concluded that it was not satisfied that Ian Brady suffered from schizophrenia but, in reaching the opposite conclusion when considering the detention criteria, it did not consider itself bound by its previous finding of fact. (2) The tribunal set out at length the reasons for concluding that the detention criteria were met in this case. 2013-09-142013 cases, Brief summary, First-tier Tribunal decisions, No transcript, Publicity
Re Boff [2013] MHLO 88 (LPA) — The donor of a Lasting Power of Attorney cannot appoint a replacement attorney to succeed another replacement attorney. 2013-09-132013 cases, Brief summary, LPA cases - all, LPA cases - replacement for replacement attorney, No transcript
Re Goodwin [2013] MHLO 86 (LPA) — The donor appointed three attorneys and two replacements. Regarding the replacements, she directed that if one ceased to act the other could act alone, and added: "She should also make every effort to find one or two replacement attorneys to take over her responsibilities in the event of her own death, or if she no longer has the mental capacity to carry on, so that there is a continuing 'Lasting Power of Attorney' in place during the donor's lifetime." On the application of the Public Guardian this provision was severed on the ground that section 10(8)(a) of the MCA invalidates any provision in an LPA giving an attorney power to appoint a substitute or successor. [OPG summary - LPA case.] 2013-09-072013 cases, Brief summary, LPA cases - all, LPA cases - appointment of substitute by an attorney, No transcript
Re Griggs [2013] MHLO 85 (LPA) — In Re Griggs the donor appointed two primary attorneys and three replacements, to act jointly for some decisions and jointly and severally for other decisions. The donor directed that "My Remaining attorney is to choose which replacement attorney is to act as my other attorney." Although the provision could be viewed as incompatible with the manner of appointment, the court severed the provision for the reason given in the Public Guardian's application, which was that the donor should not leave it to the attorneys or replacement attorneys to decide which replacement is to act. [OPG summary - LPA case.] 2013-09-072013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Baxter [2013] MHLO 75 (LPA) — The donor of a Health and Welfare LPA included the following provision: "My attorneys shall have no power to act until they have reason to believe that I have become or that I am becoming mentally incapable of managing my own affairs or that I have become physically handicapped to such a degree that I cannot look after my affairs without significant inconvenience discomfort or difficulty." On the application of the Public Guardian the words "or that I am becoming" and "or that I have become" to "difficulty" were severed. Section 11(7)(a) of the MCA provides that decisions concerning the donor's health and welfare may not be made under an LPA "in circumstances other than those where [the donor] lacks, or the donee reasonably believes that [the donor] lacks, capacity." As previously held in Re Azancot (2009) COP 27/5/09, the donor may not provide for decisions to be made by the attorney when the donor lacks physical capacity but not mental capacity. The words "or that I am ..→2013-08-122013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript
Re Spaas [2013] MHLO 74 (LPA) — The donor of a Health and Welfare LPA included the following provision: "If I become completely mentally or physically incapable for example being unable to recognise my daughter then I wish steps to be taken to end my life as quickly and painlessly as possible. It that was not possible, I would wish the minimum medical intervention possible. I would not want my life unnecessarily prolonged." On the application of the Public Guardian the words from "steps to be taken" to "I would wish" were severed. The donor may have been envisaging assisted suicide, which is unlawful (see Re Gardner (2011) COP 6/7/11) or even expressing a wish for her life to be terminated by others in circumstances which would involve a criminal offence. [OPG summary - LPA case.] 2013-08-122013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript
EC v Birmingham and Solihull Mental Health NHS Trust [2013] EWCA Civ 701, [2013] MHLO 47 — The appellant restricted patients had sought extra-statutory recommendations, in relation to leave and transfer, but the First-tier Tribunal had refused, without hearing evidence, to make recommendations. (1) The parliamentary answer in relation to extra-statutory recommendations given by a Home Office minister on 28/10/87, and the fact that recommendations had been made and considered in the past, did not give rise to a legitimate expectation that the tribunal would entertain submissions that a recommendation should be made. (2) If the FTT had been faced with the contention that leave or transfer were necessary or available parts of the patient's treatment (in relation to the test in s72(1)(b)(iia)) it would have had to consider it, but in these cases it had not been. [Summary based on Lawtel and All ER (D) reports.] 2013-05-122013 cases, Brief summary, MHLR summary, No transcript, Powers
Re Martin [2013] MHLO 21 (LPA) — The donor appointed two primary attorneys, A and B, to act jointly and severally, and three replacement attorneys, C, D and E. He included a valid provision to the effect that the D should replace B if B was unable to act, and then directed as follows: "In the event of my first attorney being unable to continue, E should act as Assistant to C (1st Replacement Attorney), and in the event of C being unable to continue, he should assume the power of Attorney." On the application of the Public Guardian this provision was severed because (applying Re Baldwin, above) the MCA does not permit a replacement attorney to be replaced, nor is it possible to direct an attorney or replacement attorney to act as assistant to another attorney or replacement attorney. [OPG summary - LPA case.] 2013-03-262013 cases, Brief summary, LPA cases - all, LPA cases - replacement for replacement attorney, No transcript
Re Black [2013] MHLO 20 (LPA) — The donor, a solicitor, appointed A and B as attorneys, to act jointly and severally. She imposed the following restriction: "A has been appointed solely to manage ABC Solicitors to enable continuing management of the Practice. B has been appointed to deal with all other financial matters both personal and business related, which do not specifically require a Solicitor of the Supreme Court." On the application of the Public Guardian the restriction was severed because it was incompatible with a joint and several appointment. [OPG summary - LPA case.] 2013-03-262013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Property and Financial Affairs LPA, No transcript
Re Hart [2013] MHLO 19 (LPA) — The donor made an LPA for property and financial affairs. He was also the sole attorney under an EPA made by his wife and registered. In his LPA he authorised his attorneys to have access to his will and medical records, and then continued as follows: "This also applies to acting as Attorneys for my wife, whose EPA has been registered." On the application of the Public Guardian this provision was severed because an LPA may not be used to add anything to someone else's EPA. (The donor appears to have wrongly assumed that his own attorneys could take over his role as attorney for his wife.) [OPG summary - LPA case.] 2013-03-262013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with an LPA, No transcript
Pender v DPP [2013] MHLO 12 (QBD) — An ASBO was imposed with a 'no begging' condition. A Crown Court appeal, based on uncontradicted medical evidence (that the appellant suffered learning difficulties, schizophrenia and severe nicotine addiction, and that begging was the manifestation of nicotine addiction), was unsuccessful. The Court of Appeal allowed an appeal by way of case stated, because the judge had failed to set out the factual basis for her factual conclusion (which was contrary to the medical evidence) that the appellant had been capable of complying with the ASBO. 2013-03-262013 cases, Brief summary, Criminal law capacity cases, No transcript
Re P (fair trial); Knowsley MBC v P [2013] MHLO 5 (COP) — The press has reported this case as follows: (1) A patient was detained in a psychiatric hospital, then transferred to a psychiatric home; when the six-month section was due to expire, the council obtained a Court of Protection order to prolong detention, without consultation with the patient, her family or her advocate. (2) Peter Jackson J approved a consent order in which the council (a) admitted, in relation to the two months of further detention, violating the patient's Article 5 (liberty), Article 6 (fair trial) and Article 8 (family life) rights, and (b) agreed to pay £6,000 compensation. (3) The patient was allowed home following legal intervention and an occupational therapy assessment. (4) The patient was quoted as saying 'I was held prisoner, it's as simple as that. Even though it's been months since I was able to come home, I still can't sleep. I feel like I just can't trust anyone. I'm constantly worried that they're going to turn up and take me away again.' ..→2013-02-102013 cases, Brief summary, No transcript, Other capacity cases
A Local Health Board v J [2012] MHLO 158 (COP) — (1) The court made the following declaration and orders as sought by the Health Board: (a) J lacked capacity to make decisions regarding her medical treatment including decisions regarding the withdrawal of ANH and other life-sustaining treatment; (b) J was in a permanent vegetative state and had no prospect of recovery; (c) there were no further investigations/treatment which should be undertaken; (d) it was in J's best interests for ANH to be withheld; (e) ANH might be withdrawn lawfully by the applicant, or responsible attending medical practitioners or nursing staff; and (f) it was in her best interests to receive such treatment and nursing care as was appropriate to ensure that she retained the greatest dignity until her life came to an end. (2) In relation to the second declaration, the court considered evidence that J had said 'die' several times, and concluded that this had been (misinterpreted) 'vocalisation' (a moan or groan often repeated, and often seen in PVS) rather ..→2012-12-212012 cases, Best interests, Brief summary, No transcript
Re Johnston [2012] MHLO 130 (EPA) — The donor appointed two attorneys to act jointly and severally. The donor included the following restriction: "The property at [address] shall not be disposed of without the agreement of A, B and C, as children of [the donor] in addition to the attorneys." On the attorneys' application the restriction was severed as being ineffective as part of an EPA. [OPG summary - EPA case.] 2012-12-182012 cases, Brief summary, EPA cases - all, EPA cases - severance of restriction fettering authority of attorney, No transcript
Re Edmonds [2012] MHLO 129 (LPA) — The donor appointed a sole attorney and then two replacements, the latter to act jointly for some decisions and jointly and severally for others. She then directed as follows: "I would like my replacement attorneys to act jointly as much as possible and always where any transaction is valued at more than £5,000." On the application of the Public Guardian the words "as much as possible and always" were severed on the ground that they were uncertain and incompatible with the appointment type. [OPG summary - LPA case.] 2012-12-182012 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript
LGO decision: Kent County Council 10 012 742 [2012] MHLO 102A — "In her report concerning services for a young woman with learning disabilities, the Ombudsman says: 'The Council’s failure to complete an assessment before the young woman was 18 caused her the injustice of losing services she was assessed as needing. The support plan that was eventually produced did not include services to meet these needs.' In addition, the Council’s poor communication led to uncertainty, confusion and frustration for the young woman and her family, and she was denied a direct payment and the choice to arrange her own respite care." 2012-09-302012 cases, Detailed summary, LGO decisions, No transcript
LGO decision: Kent County Council 11 001 504 [2012] MHLO 101 — "In her report concerning the elderly woman's residential care payment, the Ombudsman says: 'The Council’s internal guidance said that staff could only use the Council's own homes, or places it had 'pre-purchased', or community hospitals. The requirement to offer service users a genuine choice of placement when they are assessed as needing residential care is enshrined in law. The guidance did not adhere to these principles.'" 2012-09-302012 cases, Detailed summary, LGO decisions, No transcript
Re Gunn [2012] MHLO 97 (LPA) — The donor made LPAs for property and financial affairs and for health and welfare. The donor's signature was witnessed in both LPAs, but in the health and welfare instrument the witness failed to state his address and registration of this LPA was refused by the Office of the Public Guardian. On the attorney's application for an order that the instrument should be treated as if it were in the prescribed form, the court exercised its discretion under paragraph 3(2) of Schedule 1 of the MCA and declared that the instrument was to be treated as if it were an LPA for health and welfare. The court considered it relevant that the witness had stated his full address in the LPA for property and financial affairs which was executed on the same day. [OPG summary - LPA case.] 2012-09-302012 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument is in prescribed form, No transcript
Re Burdock [2012] MHLO 96 (LPA) — The donor made an LPA for property and financial affairs and included the following guidance: "(1) If the house is sold I intend to pay off Z's student loan completely. (2) I also intend to give my three daughters, or their issue, as follows: X £30,000, Y £30,000, Z £50,000. (3) The remainder to be used for my care and needs." On the application of the Public Guardian the provision was severed as it gave the attorneys greater gift making powers than are permitted under section 12 of the MCA 2005. [OPG summary - LPA case.] 2012-09-302012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Krajicek [2012] MHLO 95 (LPA) — The donor made two LPAs appointing two attorneys, A and B, and two replacement attorneys, C and D, and directed them to act jointly for some decisions and jointly and severally for other decisions. She provided that "If either of the original attorneys is unable to act then C should step in. D is to step in if the second attorney is unable to act." On the application of the Public Guardian the provision was severed because it appeared to provide for the replacement attorney to act jointly with the survivor of the original attorneys, which was incompatible with the appointment of the attorneys to act jointly for some decisions. [OPG summary - LPA case.] 2012-09-302012 cases, Brief summary, LPA cases - all, LPA cases - survivor of original joint appointment cannot act with replacement, No transcript
Re Dowden [2012] MHLO 94 (LPA) — The donor made two LPAs in which she appointed a professional attorney and a lay attorney to act jointly and severally. She directed that the professional attorney should be paid fees "in keeping with the charging rate in force at the time the work is undertaken". She then directed that the lay attorney should be paid a reasonable hourly fee and stated that any sum paid "must be with the approval of my Solicitor/Attorney" and "will be at such rate as he feels is appropriate". On the application of the Public Guardian the provision relating to the lay attorney's fees being approved and set by the professional attorney was severed as being incompatible with a joint and several appointment. The judge added that, to have achieved the desired objective, the donor should have appointed the attorneys to act jointly for some decisions (in this case on agreeing an appropriate level of remuneration for the lay attorney) and jointly and severally for other decisions. ..→2012-09-302012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Sheppard [2012] MHLO 93 (LPA) — The donor of a health and welfare LPA included the following guidance: "My attorneys are to maintain the health and welfare needs of X." On the application of the Public Guardian the provision was severed as it is not open to a donor to require attorneys to make health and welfare decisions on behalf of a third party. [OPG summary - LPA case.] 2012-09-302012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript
Re Kerron [2012] MHLO 92 (LPA) — The donor made an LPA for health and welfare, and imposed the following restriction: "If assessed as requiring nursing/residential care I would like to move promptly to a home jointly chosen by myself and my attorneys." On the application of the Public Guardian the words "jointly" and "myself and" were severed on the ground that a health and welfare LPA can only be used when the donor lacks capacity, and if the donor lacked capacity she would not be able to choose a nursing or residential care home. [OPG summary - LPA case.] 2012-09-302012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript
Re Darlison [2012] MHLO 91 (LPA) — The donor made an LPA for property and financial affairs. In the guidance section she stated: "Oversee X's financial welfare. X is [my] daughter." On the application of the Public Guardian the guidance was severed on the ground that the donor of an LPA cannot authorise the attorneys to act in relation to the financial affairs of another person. [OPG summary - LPA case.] 2012-09-302012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with an LPA, No transcript
Re Norris [2012] MHLO 90 (LPA) — The donor made LPAs for property and financial affairs and for health and welfare and included the following guidance in both LPAs: "At all times to make decisions in the best interests of [my wife] during her lifetime." On the application of the Public Guardian the provision was severed as being potentially inconsistent with the requirement in section 1(5) of the MCA that any act done or decision made must be done or made in the donor's best interests. [OPG summary - LPA case.] 2012-09-302012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with an LPA, No transcript
LGO decision: Jones 10 010 739 [2011] MHLO 191 — "A case where the DoL decision taken was not the 'least restrictive' option." [Summary required.] 2012-08-182011 cases, LGO decisions, No summary, No transcript
LGO decision: Dorothy 10 013 715 [2011] MHLO 190 — "A case where a DoL application was not made promptly and the care home's/council's approach to restrictions placed on the complainant and her mother was flawed." [Summary required.] 2012-08-182011 cases, LGO decisions, No summary, No transcript
Re Steven Neary; LB Hillingdon v Steven Neary [2012] MHLO 71 (COP) — The Court of Protection approved a consent order under which the London Borough of Hillingdon is to pay £35,000 damages to Stephen Neary. 2012-07-262012 cases, Best interests, Brief summary, Deprivation of liberty, No transcript
Re O'Brien [2012] MHLO 65 (LPA) — The donor of a property and financial affairs LPA included the following guidance: "My handicapped son should be adequately provided for." On the application of the Public Guardian this provision was severed on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2012-06-232012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Strange [2012] MHLO 64 (LPA) — The donor of a property and financial affairs LPA included the following guidance: "I wish my attorneys to provide for the financial needs of my husband in the same manner that I might have been expected to do if I had capacity to do so." The Public Guardian asked the court to consider whether the guidance needed to be severed as potentially contravening section 12 of the MCA 2005. In the application the Public Guardian referred to the case of Bloom (above), noting that a wife had no common law duty to maintain her husband and that the husband's common law duty would be abolished when section 198 of the Equality Act 2010 came into force, but noting also that various other legislation (see below) imposed a duty on a wife to maintain her husband. The court did not sever the guidance and explained the position in the following terms: "In the context of clauses in an LPA in which the donor makes provision for the maintenance of his or her spouse, there should be no distinction between ..→2012-06-232012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Smith [2012] MHLO 63 (LPA) — The donor appointed two attorneys to act jointly and severally. The LPA was registered by oversight even though one attorney's signature had not been witnessed. The attorney applied for a declaration of validity, and the evidence was that the witness had been present when the attorney signed, but had not signed under the attorney's name. The court dismissed the application, holding that it had no jurisdiction to declare that the LPA was valid. The applicant was directed to return the instrument to the OPG so that his appointment could be marked as invalid in accordance with section 10(7) of the MCA 2005. [OPG summary - LPA case.] 2012-06-232012 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument has been correctly executed, No transcript
Re McGreen [2012] MHLO 62 (LPA) — The donor appointed A as attorney and B as replacement attorney and then provided as follows on the A2 continuation sheet: "If my Replacement Attorney is no longer a partner in the firm of XYZ Solicitors, I appoint in his place a suitably qualified partner of that firm or firm which has succeeded that firm and carries on its practice, to be my Replacement Attorney." (Only A and B had signed Part Cs.) The Public Guardian applied for severance of the provision on the ground that it was not possible to appoint a replacement attorney to take over from a replacement attorney (see Re Baldwin, below, under the heading "Replacement for replacement attorney".) The court severed the provision for that reason and also for the following reason: "Section 19(2) of the Mental Capacity Act 2005 states that, in respect of the appointment of deputies, 'the court may appoint an individual by appointing the holder for the time being of a specified office or position'. However, there is no comparable ..→2012-06-232012 cases, Brief summary, LPA cases - all, LPA cases - appointment of office holder as attorney, No transcript
Re Llewelyn [2012] MHLO 61 (LPA) — The donor appointed attorneys including her husband to act jointly in some matters and jointly and severally in other matters. She stated that decisions were to be made jointly and severally apart from a list of specified decisions which were to be made jointly, but added a proviso to the effect that, provided her husband was able to act as one of her attorneys, all decisions could be made jointly and severally. On the application of the Public Guardian the proviso was severed as being incompatible with an appointment to act jointly in some matters and jointly and severally in others. [OPG summary - LPA case.] 2012-06-232012 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript
Re Drew [2012] MHLO 45 (LPA) — The donor of a property and financial affairs LPA included the following guidance:" If my father is still alive then my trustees should continue with my contributions to his care (my records make clear from which account) and assume my role in financial responsibility for him." [The reference to "trustees" should have been to "attorneys".] The court severed the provision on the ground that it contravened section 12 of the MCA 2005. The order recited that the case of Bloom was distinguishable because in the present case the donor had no common law duty to make provision for her father's maintenance. [OPG summary - LPA case.] 2012-04-282012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Bloom [2012] MHLO 44 (LPA) — The donor of a property and financial affairs LPA included the following direction: "I direct my attorneys to use such of my capital and income as they shall at their discretion deem necessary to make provision for my wife's maintenance and benefit." The Public Guardian asked the court to sever either the entire direction or just the words "and benefit". The court severed only the words "and benefit" on the ground that they contravened section 12 of the MCA 2005. The order recited that the donor had a common law duty to make provision for his wife's maintenance. [OPG summary - LPA case.] 2012-04-282012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Batchelor [2012] MHLO 43 (LPA) — The donor of a property and financial affairs LPA included the following provision: "I would ask my attorneys to have regard to any separate guidance note which I may make from time to time and place with this Lasting Power of Attorney." On the application of the Public Guardian the provision was severed on the ground that it contravened the requirements of regulation 9 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007, which do not permit additions to be made to an LPA. [OPG summary - LPA case.] 2012-04-282012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with an LPA, No transcript
Dunhill v Burgin [2012] EWCA Civ 397, [2012] MHLO 33 — (1) In deciding whether the claimant had capacity to settle a claim for £12,500 (at hearing it would have been worth at least £800,000) the question was not whether she had capacity to enter into that settlement but whether she had capacity to litigate. (2) On the facts, she had lacked capacity, and the compromise would never have been approved by the court. 2012-04-132012 cases, Brief summary, No transcript, Other capacity cases
Re Taylor [2012] MHLO 24 (EPA) — (1) In Re Dunningham: The donor appointed two attorneys, A and B, to act jointly and severally. She then imposed the following restriction: "and the said B shall have no authority to act on my behalf unless the said A has died or is incapable of acting as my Attorney". On the application of the attorneys for severance, the court severed the restriction as being inconsistent with a joint and several appointment. (2) In Re Taylor: on similar facts, the court severed the words 'jointly and severally'. [OPG summaries - EPA cases.] 2012-03-222012 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re H [2012] MHLO 21 (LPA) — The donor used the 2007 version of the LPA prescribed form and failed to tick the box to confirm that she had read (or had read to her) the prescribed information on pages 2, 3 and 4. On the attorney's application the court was unable to find on balance of probability that the donor had read (or had read to her) the prescribed information. This was a failure of execution and the court had no discretion to uphold it. [OPG summary - LPA case.] 2012-03-192012 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument has been correctly executed, No transcript
Re Forrest [2012] MHLO 20 (LPA) — The donor included the following guidance: "I hereby express the wish that my Attorneys will continue to pay my contribution to the school fees of my granddaughters, A and B, as per my previous pattern of contributions." On the application of the Public Guardian the guidance was severed on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2012-03-192012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Lane [2012] MHLO 15 (LPA) — The donor made an LPA on 3 May 2011 using the 2007 prescribed form. The transitional provisions of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment Regulations) 2009, which introduced new prescribed forms, provide that an instrument executed by the donor before 1 April 2011 on the 2007 prescribed form is capable of being a valid lasting power of attorney. The Public Guardian made an application to the court for the severance of an invalid restriction, and drew the court's attention to the date of execution, submitting that the 'old' forms were not materially different from the 'new' forms. The court accepted that the 'old' forms differed from the 'new' forms in an immaterial respect and were accordingly within paragraph 3(1) of Schedule 1 of the MCA, which provides that an instrument which differs in an immaterial respect in form or mode of expression from the prescribed form is to be treated by the Public Guardian as sufficient in point ..→2012-03-052012 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument is in prescribed form, No transcript
Coombs v Dorset NHS PCT [2012] EWHC 521 (QB), [2012] MHLO 13 — Whether the claimant, who had sustained a serious head injury while a detained patient, should be permitted to fund his future care. (1) The defendant argued that (a) a detained patient could not choose to pay for his treatment, particularly because the RC chose where and how he was treated; (b) allowing payment would create a contract, contrary to the purpose of the MHA to take care and treatment out of patients’ hands; (c) there was no significant difference compared with prisoners, whose expenses are met by the government under s51 Prison Act 1952; (d) while the statute did not prohibit payment, it would be contrary to public policy to allow a patient to use his own funds. (2) The claimant argued that (a) there was no reason why a detained patient should not be able to pay if he wishes; (b) while the patient could not choose where or how he was treated, he should be able to top-up payments if he preferred a placement for which the funding authority were unwilling to pay; (c) ..→2012-03-052012 cases, Brief summary, Miscellaneous, No transcript
R v Nottingham MHRT, ex p Secretary of State for the Home Department (Thomas) [1988] MHLO 1 — The Tribunal has no power to adjourn to give an opportunity for the patient's condition to improve or to see if an improvement already made is sustained. 2012-02-091988 cases, Brief summary, No transcript, Powers
Re Tucker (2011) COP 9/12/11 — The donor appointed one attorney and one replacement attorney and then directed as follows: "My replacement attorney shall only act if my attorney is unable to act by virtue of:- (a) the power to the attorney is revoked by me; or (b) the power is terminated by reason of the death, disclaimer or other incapacity of my attorney to act as my attorney; whichever shall first occur. For the avoidance of doubt my replacement attorney shall act alone if my attorney is not able to act." On the application of the Public Guardian the words "by virtue of:- (a) the power to the attorney is revoked by me; or (b) the power is terminated" were severed because revocation of the attorney's appointment is not one of the events listed in section 13(6)(a)-(d) of the MCA that trigger the activation of the appointment of a replacement attorney. [OPG summary - LPA case.] 2012-01-092011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to when a replacement attorney may act, No transcript
Re Evans (2011) COP 24/11/11 — The donor appointed A (his wife) and B as attorneys, to act jointly and severally, and C as replacement attorney. He then directed as follows: "My replacement attorney will replace both my attorneys and act alone if and when my wife becomes unable or unwilling to carry out her duties as my attorney." On the application of the Public Guardian the direction was severed because the donor was attempting to provide for attorney B to be replaced even though one of the triggering events for his replacement listed in section 13(6)(a)-(d) of the MCA had not occurred. [OPG summary - LPA case.] 2012-01-092011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to when a replacement attorney may act, No transcript
PFZ v West London MH NHS Trust (2011) Settlement 28/11/11 — PFZ, an informal patient with a long history of mental illness, was allowed to run away from hospital in a suicidal state, then jumped from a balcony sustaining and permanent and catastrophic spinal cord injury which left him tetraplegic and wheelchair-bound. He sued the Trust for negligent failure to provide him with adequate treatment. The Trust agreed to compensate him on the basis of 40% liability, and made an advance payment of £75,000; the full amount was yet to be assessed but to meet PFZ's care needs for the remainder of his life was estimated to require millions of pounds. 2011-12-102011 cases, Brief summary, Miscellaneous, No transcript
Re Clare (2011) COP 8/9/11 — The donor made two LPAs, each appointing an attorney and a replacement attorney. In each she directed as follows: "My Attorney may at any time appoint a substitute to act as my Attorney and may revoke any appointment without giving a reason. Each appointment is to be in writing signed by my Attorney. Every substitute has full powers as my Attorney as if appointed by this Deed, except the power to appoint a substitute." On the application of the Public Guardian the provision was severed as being a plain breach of section 10(8)(a) of the MCA, which provides that an LPA cannot give the attorney power to appoint a substitute or successor. [OPG summary - LPA case.] 2011-11-302011 cases, Brief summary, LPA cases - all, LPA cases - appointment of substitute by an attorney, No transcript
Re Dhir (2011) COP 15/11/11 — The donor set out eight restrictions, one of which was: "My attorney must not sell any of my properties unless it is required for my wife's medical treatment." On the application of the Public Guardian the restriction was severed on the ground that it authorised the attorneys to make gifts beyond the scope of the statutory power set out in section 12 of the MCA 2005. [OPG summary - LPA case.] 2011-11-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Hamilton (2011) COP 25/10/11 — The donor appointed one primary attorney and one replacement attorney. On page 5 of the LPA the donor inappropriately ticked the box indicating that the attorneys were appointed to act jointly for some decisions and jointly and severally for other decisions, and continued: "My No 1 Attorney will make all decisions re my everyday expenses and decisions [and] will make joint decisions with the Replacement Attorney in reference to any large decisions re the selling of investments, property and the eventual need of a nursing home etc." On the application of the Public Guardian the provision was severed on the ground that, having appointed the attorneys to act successively, the donor could not authorise them to make any decisions concurrently, whether jointly or jointly and severally. [OPG summary - LPA case.] 2011-11-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to when a replacement attorney may act, No transcript
Re Stewart (2011) COP 9/11/11 — The donor included the following direction in the guidance section: "I authorise my attorneys to refuse or consent to my deprivation of liberty." The Public Guardian applied for severance on the ground that: "The deprivation of the donor's liberty is only lawful if ordered by the court or done in accordance with the procedures prescribed by law under the Mental Capacity Act 2005 as amended by the Mental Health Act 2007. The donor does not have power to authorise her attorneys to consent to the deprivation of her liberty in the absence of a court order or going through the Deprivation of Liberty Safeguarding procedures." The court determined that the direction was invalid for the reasons given by the Public Guardian. [OPG summary - LPA case.] 2011-11-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript
Re McGregor (2011) COP 16/11/11 — The donor appointed attorneys to act jointly in some matters and jointly and severally in others, and directed as follows: "Jointly - decisions on sale of house. Decisions on type of care received if no longer able to stay in own home. Severally - financial matters regarding bank accounts and general cash flow." On the application of the Public Guardian the words "decisions on sale of house" and "Severally - financial matters regarding bank accounts and general cash flow" were severed because they purported to give Health and Welfare attorneys authority to make decisions regarding the donor's property and financial affairs. (The result would be that, by implication, the attorneys would be able to decide jointly and severally all matters other than the type of care the donor would receive if no longer able to stay in his own home.) [OPG summary - LPA case.] 2011-11-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript
De Louville De Toucy v Bonhams 1793 Ltd (2011) All ER (D) 32 (Nov) — (1) There was no inconsistency between the Insolvency Rules (defining an 'incapacitated person') and the CPR (defining a 'protected party'). (2) The registrar should not have declared the claimant bankrupt: he ought to have (a) been aware that the claimant was incapable, (b) adjourned the case for a representative or litigation friend to be appointed, and (c) heard representations from such a person. (3) On the evidence, the financial situation was complex and, without proper investigation, it was impossible to be sure that it was appropriate to make a bankruptcy order, so the order was set aside and the matter referred to the registrar to be heard again. [Summary based on All ER (D) report.] 2011-11-142011 cases, Brief summary, Missing from Bailii, No transcript, Other capacity cases
Re Hurren (2011) COP 28/9/11 — The Public Guardian refused to register the instrument as an LPA because the Part B certificate had been signed before the donor signed Part A, in contravention of Regulation 9 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007. (The donor had subsequently lost capacity.) On the attorney's application, the court declared in the exercise of its discretion under paragraph 3(2) of Schedule 1 of the MCA 2005 that the instrument was to be treated as if it were in the prescribed form and directed registration. The Public Guardian applied to set aside the order on the ground that paragraph 3(2) did not apply in the case of defective execution. The court set aside the order, and confirmed that the discretion given to the court under paragraph 3(2) applies only to an instrument which is not in the prescribed form and does not apply to any prescribed requirements in connection with its execution. [OPG summary - LPA case.] 2011-11-142011 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument has been correctly executed, No transcript
Re Steiner (2011) COP 17/10/11 — The donor appointed two attorneys to act jointly. She then gave the following guidance: "Should the need arise relating to the management of my financial affairs and my business interests, whoever at the time is acting for me personally as my accountant or solicitor shall adjudicate over my personal financial interests and whoever is acting professionally for me in respect of my business interests either my accountant or solicitor shall adjudicate over my business interests." On the application of the Public Guardian the court severed the provision from the LPA on the ground that it could potentially oust the jurisdiction of the court. [OPG summary - LPA case.] 2011-11-142011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions fettering authority of an attorney, No transcript
Re Wormsley (2011) COP 24/10/11 — The donor appointed two primary attorneys and two replacement attorneys, and directed them to act jointly and severally. He further directed as follows: "If a replacement attorney is required to replace an original attorney, the two replacement attorneys shall decide which one of them shall serve as attorney." On the application of the Public Guardian the court severed the provision as being inconsistent with the joint and several appointment of the replacement attorneys. [OPG summary - LPA case.] 2011-11-142011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Jarman (2011) COP 8/8/11 — The donor made an EPA appointing attorneys to act jointly and severally. He included the following restriction: "While both of my Attorneys are alive and of capacity they are to act jointly and a certificate from a practising doctor will be sufficient evidence of capacity of either of my Attorneys." On the application of the attorneys the court severed the restriction as being incompatible with a joint and several appointment. [OPG summary - EPA case.] 2011-10-012011 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Gee (2011) COP 22/8/11 — The donor of a property and affairs LPA included the following guidance: "Although I authorise my Attorneys to make gifts of money to either grandchild in cases of extreme need (for which I rely on my Attorneys' discretion) no benefit directly or indirectly should go to my daughter. If my house has to be sold I authorise my Attorneys to distribute any furniture, household and personal effects to X, Y and my grandchildren as if I had died." In making the application the Public Guardian referred the court to the view expressed by the Law Commission in its report on Mental Capacity (Law Com. No. 231) to the effect that an LPA attorney could provide for the needs of others as part of his duty to act in the donor's best interests, even in the absence of an express provision such as is conferred on EPA attorneys. The Public Guardian asked the court to consider whether the view of the Law Commission could be relied on in cases where the donor contemplated that the attorneys could provide ..→2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Temple (2011) COP 10/8/11 — The donor of a property and affairs LPA included the following guidance: "My attorney is authorised to grant gifts of up to £5,000 for family and also to provide interest free loans of up to £10,000 for extreme need. Where possible loans to be repaid within one year with flexibility of terms allowed at my attorney's discretion." On the application of the Public Guardian the guidance was severed because it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Jackson (2011) COP 17/8/11 — The donor of a property and affairs LPA included the following guidance: "If my attorneys believe I lack mental capacity or am becoming mentally incapable of managing and administering my property and financial affairs then I wish them to realise all my stocks, shares and other investments and transfer the proceeds and the balances from all bank and other accounts in my sole name into a joint account in the names of myself and my wife to ensure that my wife has full access to all funds." On the application of the Public Guardian the guidance was severed because it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Fisher (2011) COP 28/7/11 — The donor included the following provision in his LPA: "I direct that if I lack mental capacity or for any other reason am unable to deal with my day to day financial affairs then my Attorney is to pay from my business the sum of £4,000 per calendar month into the bank account of my wife." On the application of the Public Guardian the provision was severed on the ground it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Walker (2011) COP 20/7/11 — The donor of a property and affairs LPA included the following provision in the guidance section: "To help my son X financially from my funds as and when he requires." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Salter (2011) COP 18/8/11 — The donor appointed primary attorneys to act jointly in some matters and jointly and severally in others, and also appointed replacement attorneys. She then directed as follows: "For decisions where my attorneys must act jointly, replacement attorney 1 should replace attorney 1, when he is unable to act and replacement attorney 2 should replace attorney 2 when he is unable to act." On the application of the Public Guardian this provision was severed because the effect of one primary attorney ceasing to act would be that the other primary attorney could no longer act in the matters to be decided jointly, but the direction contemplated that the first replacement would act with the surviving primary attorney. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - survivor of original joint appointment cannot act with replacement, No transcript
Re Druce (2011) COP 31/5/11 — The donor made LPAs appointing A and B as her attorneys, to act jointly, and C and D to be her replacement attorneys. She then imposed the following restriction: "Both C and D should jointly replace the first attorney who needs replacing so that on the first replacement there will be 3 acting attorneys. No further replacements will be needed." On the application of the Public Guardian the court severed the restriction. There is nothing in section 10(8)(b) of the MCA, which deals with the appointment of replacement attorneys, to displace the fundamental principle that the survivor of joint attorneys cannot act. Where one of the original joint attorneys can no longer act, the replacement(s) will step in and act alone, to the exclusion of the surviving original attorney. This ruling reflects what is stated to be the "better view" in paragraph 4.44 of Cretney and Lush on Lasting and Enduring Powers of Attorney (6th edition). [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - survivor of original joint appointment cannot act with replacement, No transcript
Re Brindley (2011) COP 11/5/11 — The donor appointed three attorneys, A, B and C, to act jointly and severally. She then imposed the following restriction: "C does not attain the age of 18 until 21.12.2012 upon which date along with A and B she will act jointly and severally as attorney." On the application of the Public Guardian the appointment of C was severed as invalid on the basis that it contravened section 10(1)(a) of the MCA. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - attorney or replacement attorney under 18, No transcript
Re Ingham (2011) COP 15/8/11 — The donor appointed four attorneys to act jointly for some decisions and jointly and severally for others. She then directed as follows: "A. While all attorneys are acting: 1. All may complete any transaction with a value not exceeding £2,500. 2. All must complete any transaction with a value exceeding £2,500. B. In the event that only two or three Attorneys remain capable of acting those Attorneys are bound by A1 and 2 above. C. In the event that only one Attorney remains capable of acting that Attorney has full powers to complete transactions of any value." On the application of the Public Guardian directions B and C were severed on the ground that they were incompatible with the joint aspect of the appointment: if one attorney ceased to act, the matters to be decided jointly would not be able to be decided by the continuing attorneys. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript
Re Freeman (2011) COP 17/8/11 — The donor appointed A and B as attorneys to act jointly in some matters and jointly and severally in others. He specified that they were to act as follows: "Major capital expenses jointly. Day to day expenses A." In his application the Public Guardian submitted that the donor had not specified any decisions to be made jointly and severally and so the words "Day to day expenses A" should be severed, with the effect that decisions not specified to be taken jointly should by implication be taken jointly and severally. The court was also asked to sever the word "Major" on the ground of uncertainty. The court accordingly severed these words so that the attorneys were appointed to act jointly for "capital expenses" and (by implication) jointly and severally for everything else. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript
Re Pugh (2011) COP 13/7/11 — The donor appointed three replacement attorneys to act jointly. She then completed the box on page 5 of the form (which should be completed only if the attorneys are to act jointly in some matters and jointly and severally in others) and directed as follows: "Where by this power I have appointed three replacement attorneys to act jointly on all occasions then I direct that if there is a dispute it is the majority decision of my three replacement attorneys that is to be followed and in the event that by reason of death or incapacity or other reason I only have two of my three replacement attorneys who are capable of acting then in the event of a dispute between my two continuing replacement attorneys it is the decision of the eldest that is to be followed." On the application of the Public Guardian the court severed the restriction as being incompatible with a joint appointment. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint appointment, No transcript
Re Wheeler (2011) COP 25/7/11 — The Public Guardian applied for the severance of an invalid clause in the LPA. The Senior Judge considered that another clause was also invalid, which was severed on the court's own initiative. The donor had provided the following guidance: "My attorneys may act on the contents of my will." The court's reason for severing the guidance was as follows: "The court considers that the meaning of this guidance is unclear and that it is probably void for uncertainty. Potentially it authorises the attorneys to distribute the donor's estate during his lifetime as if he were dead, which would be not only contrary to public policy but also contrary to the provisions of section 12 of the Mental Capacity Act 2005. A will speaks from death, and it is not a function of an attorney to act as the executor of the donor's will." [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Property and Financial Affairs LPA, No transcript
Re Hodgkiss (2011) COP 25/8/11 — The donor of a Health and Welfare LPA selected Option B, which states that the attorneys have no authority to give or refuse life-sustaining treatment. He then directed as follows: "Attorneys must consent to any life sustaining treatment if I am in a persistent vegetative state." On the application of the Public Guardian this provision was severed as being incompatible with his selection of Option B. The court added that, if the donor had wished to give his attorneys authority to consent to life-sustaining treatment if he were in a persistent vegetative state, he should have selected Option A. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions relating to life-sustaining treatment, No transcript
Re Gardner (2011) COP 6/7/11 — The donor included the following statement in the guidance section of the instrument: "If I am suffering from a terminal illness I would ask that my attorneys assist me in travelling to a country where it is legal for me to take my own life should I choose to do so." On the application of the Public Guardian the court severed the guidance for the following reasons: (i) section 62 of the MCA 2005 provides that nothing in the Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (assisting suicide); (ii) the donor was purporting to authorise the attorneys to commit the criminal offence of assisting suicide, and the fact that a person who assists a suicide is not always prosecuted in England and Wales does not detract from the fact that it remains a criminal offence; (iii) although the statement appeared in the guidance section, it is not open to a donor to provide guidance to the attorneys relating to the ..→2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript
DP v South Tyneside DC (2011) Admin Court 14/7/11 — It was not practicable to consult the nearest relative because (1) DP was perceived to be potentially at risk from him (forced marriage/death) and (2) consultation was not possible without disclosing DP's location (the duty of consultation not being one of mere notification): therefore the application for habeas corpus was refused. 2011-08-222011 cases, Brief summary, Consulting NR, No transcript
Re Parsonage (2011) COP 1/4/11 — The donor of an LPA inserted the following restriction: "My replacement attorneys under this lasting power shall not have authority to do any act, or take any decision, under this lasting power except in those circumstances where I lack capacity or where the replacement attorneys reasonably believe that I lack capacity or when I have signed that I wish the lasting power to come into effect by signing the lasting power again." On the application of the Public Guardian the words "or when I have signed that I wish the lasting power to come into effect by signing the lasting power again" were severed on the ground that re-execution of the LPA by the donor after completion and registration would contravene the execution requirements for an LPA. [OPG summary - LPA case.] 2011-05-262011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with an LPA, No transcript
R (WG) v Local Authority A [2010] EWHC 2608 (Admin) — Judicial review of failure to assess under s47 NHSCCA 1990. Claim stayed for three months, during which the local authority was to carry out the assessment and the claimant was to provide her identity to the court. 2011-04-302010 cases, Missing from Bailii, No summary, No transcript, Unimportant cases
Re CM; LBB v JM (2010) COP 5/2/10 — "The local authority took the view that since the intervention of the court would engage a potential breach of the Article 8 rights of the parties, that it may be incumbent upon them to establish on a factual basis why it was that the court's jurisdiction should be exercised. Broadly speaking, I would endorse that approach and recognise that where an Article 8.2 justification is required then the case should not be dealt with purely as a welfare case if there are significant factual issues between the parties which might bear on the outcome of the consideration under Article 8.2 as to whether state intervention was justified." 2011-04-302010 cases, Detailed summary, No transcript, Other capacity cases
Re Cretney (2011) COP 24/2/11 — The donor made an LPA on the "new" form prescribed in 2009 but omitted the attorney's date of birth in Part A. The Public Guardian refused to register on the ground that the instrument differed materially from the prescribed form. On the application of the attorney (who was over 18) the court declared in the exercise of its discretion under paragraph 3(2) of Schedule 1 of the MCA that the instrument was to be treated as if it were in the prescribed form. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - date of birth of attorney missing, No transcript
Re Dadd (2010) COP 17/10/10 — The donor made an LPA using the "new" form presribed in 2009. She appointed two attorneys but provided no date of birth for either. The Public Guardian was willing to register in favour of one attorney because her title was given as "Mrs", so that it could reasonably be inferred that she was at least 18. It was overlooked that the other attorney was described in the instrument as the donor's husband. On the attorney's application the court directed registration. As it could be inferred from the instrument that both attorneys were at least 18, the instrument differed from the prescribed form in an immaterial respect within paragraph 3(1) of Schedule 1 of the MCA 2005. [OPG summary - LPA case.] 2011-03-182010 cases, Brief summary, LPA cases - all, LPA cases - date of birth of attorney missing, No transcript
Re Parker (2011) COP 18/2/11 — The donor of a Health and Welfare LPA appointed X and Y as attorneys to act jointly in some matters and jointly and severally in others. He then directed as follows: "I wish the prime responsibility for decisions in respect of my health to vest in X. My attorneys need only act jointly in the event of serious and/or life threatening conditions. In this case X should endeavour to contact Y but if she is, for whatever reason, unable to do so she may act on her own (severally) despite the serious and/or life threatening condition." On the application of the Public Guardian the last sentence of this direction was severed as being incompatible with the appointment to act jointly in some matters. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript
Re Noel (2011) COP 31/1/11 — The donor appointed two attorneys to act jointly in some matters and jointly and severally in others. He then appointed X as replacement attorney. He directed that a decision to sell a named property " must be made jointly by all surviving attorneys including X". On the application of the Public Guardian the words "including X" were severed, as being incompatible with the manner in which the attorneys and replacement attorneys had been appointed. The court added that, to have acheived the desired objective, the donor should have appointed all three as attorneys (rather than two attorneys and a replacement) and directed them to act jointly in some matters and jointly and severally in others. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to when a replacement attorney may act, No transcript
Re Scragg (2011) COP 1/2/11 — The donor of a property and affairs LPA (who lived abroad) gave detailed instructions to his attorney relating to all of his assets in the event of a return to England, and added that these instructions were "subject to the written consent of my daughter" (who was the replacement attorney and also the attorney under his Health and Welfare LPA). On the application of the Public Guardian the words "subject to the written consent of my daughter" were severed because the requirement that the attorney should obtain the consent of a third party before exercising his powers imposed an unjustifiable fetter on his authority. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions fettering authority of an attorney, No transcript
Re Knight (2011) COP 18/2/11 — The donor of a property and affairs LPA included the following provision in the guidance section; "I wish my attorneys, if they think fit, to pay my sister by way of gift the sum of £3,000 annually and to pay by way of gift the sum of £250 annually to my brother in law, my nephew, his spouse and all my nieces including spouses (other than to X), my great nephew and great niece, all of whom are listed on page A2 being the amounts of gifts exempt from inheritance tax under the current inheritance tax laws or such other annual sums by way of gift as shall for the time being be exempt from inheritance tax or other tax payable on death." On the application of the Public Guardian the provision was severed on the ground it contravened section 12 of the MCA 2005. Although the provision was expressed as guidance, it was not open to the donor to give guidance about gift making in terms going beyond the statutory power, and although it might be possible for the attorneys to make the desired ..→2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Careford (2011) COP 16/2/11 — The donor of a property and affairs LPA included the following provision in the guidance section; "While my husband is my attorney, he may use my own money and property for his benefit in any way he wishes. My replacement attorneys may use my money and property for the benefit of my husband in any way they think fit. All of my attorneys may make gifts to my husband from my estate." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. Although the provision was expressed as guidance, it was not open to the donor to give guidance about gift making in terms going beyond the statutory power. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Wheatley (2011) COP 31/1/11 — The donor of a property and affairs LPA included the following provision in the guidance section; "My attorneys will continue to make contributions to my grandchildrens' Child Trust Funds and any other saving/pension plans that I fund for their benefit." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. ALthough expressed as guidance, it was more in the nature of a direction. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Munn (2011) COP 28/1/11 — The donor of a property and affairs LPA included the follwoing provision in the guidance section; "My finances should be managed so that X can continue to live at [a named property] for as long as she wishes and receives income from all investments and holiday lettings." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. Although expressed as guidance, it was more in the nature of a direction. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Baker (2011) COP 4/2/11 — In Part A of the instrument the donor put his middle name in the box for "Last Name" and omitted his surname completely. As his middle name could have passed for a surname, this error was not noticed by anybody and the instrument was registered. The attorney applied for a declaration that the LPA was to be treated as valid under paragraph 3(2) of Schedule 1 of the MCA 2005, under which the court may declare that an instrument is to be treated as if it had been made in the prescribed form even though it differs in a material respect from the prescribed form. The court exercised its discretion under paragraph 3(2) because, although the error was material, it was satisfied that the instrument was intended to be an LPA. The Public Guardian was directed to amend the register and attach a note to the instrument to this effect. (Note: for a similar case concerning an EPA, see Re Orriss (2010) COP 20/10/10, under the "Rectification" heading.) [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - donor surname missing, No transcript
Re McKenna (2011) COP 1/2/11 — The donor purported to appoint a replacement attorney who, at the date the donor signed the instrument, was 16 years old. The donor added the following restriction; "My replacement attorney shall only act if she is over the age of 18." On the application of the Public Guardian the appointment of the replacement attorney was severed as it contravened section 10(1)(a) of the MCA 2005, which provided that an attorney must have reached 18. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - attorney or replacement attorney under 18, No transcript
Re Cranston (2011) COP 18/2/11 — The donor appointed attorneys to act jointly in some matters and jointly and severally in others. He included in the list of matters which should be decided jointly "changing my will". On the application of the Public Guardian these words were severed on the ground that an attorney has no authority to change a donor's will. An attorney may apply to the court for an order authorising the execution of a statutory will if a donor lacks testamentary capacity. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Property and Financial Affairs LPA, No transcript
Re Scott (2011) COP 11/1/11 — The donor made an LPA for property and financial affairs, appointing A and B to act jointly and severally. She then imposed the following restriction: "In the event of there being any disagreement between A and B (as the attorneys for property and financial affairs) and C (as the attorney for health and welfare) over expenditure on my health or welfare then C's decision is to prevail." The Public Guardian applied for this restriction to be severed on the basis that Re Reading (above) showed that a donor could not require that a person who was not an attorney under the instrument should join in the making of decisions by the attorneys. The court dismissed the Public Guardian's application, considering that there was no reason in law why the donor of two seperate LPAs should not be able to provide that, in the event of a disagreement between the attorneys for property and financial affairs and the attorney for health and welfare, the decision of the attorney for health and ..→2011-01-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions fettering authority of an attorney, No transcript
Re Stevens (2011) COP 11/1/11 — The donor made an EPA including the following provision: "The word "seasonal" in section 3(5) of the Enduring Powers of Attorney Act 1985 includes the end of one tax year and the beginning of another." On the application of the attorneys the court severed the provision as being ineffective as part of an EPA. [OPG summary - EPA case.] 2011-01-302011 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with an EPA, No transcript
Re Harris (2011) COP 6/1/11 — The donor made an EPA purporting to authorise the Attorneys to do the following: "Making a choice on my behalf for any nursing/residential care needed for me in the future." On the application of the Attorneys the court severed the provision on the ground that it would be ineffective as part of an EPA, because it sought to authorise Personal Welfare decision making. [OPG summary - EPA case.] 2011-01-302011 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with an EPA, No transcript
Re Donegan (2011) COP 6/1/11 — The donor made an EPA including the following provision: "All the while that I am practically and financially able to remain in my own home my Attorneys should ensure that I remain there. My Attorneys do not have power to sell my home." On the application of the Attorneys the court severed the restriction on the ground that it was ineffective as part of an EPA because it sought to confer Personal Welfare decision making powers on the Attorneys. [OPG summary - EPA case.] 2011-01-302011 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with an EPA, No transcript
Re Berg (2010) COP 31/12/10 — The donor made an EPA appointing A and B to act jointly. He then added: "so long as neither Attorney dies or is incapacitated in which eventuality the other Attorney is empowered to act on his own". On the application of the attorneys the court severed the restriction as being incompatible with a joint appointment. [OPG summary - EPA case.] 2011-01-302010 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint appointment, No transcript
Re Haworth (2010) COP 20/12/10 — The donor made an EPA appointing A and B to act jointly and severally. He then imposed the following restriction: "B shall not, while A is alive and mentally capable, without A's consent (a) sell, mortgage, charge, lease, or otherwise dispose of any asset of mine or (b) enter into any transaction with a value of more than £2,000." On the attorneys' application the court severed the restriction as being incompatible with a joint and several appointment. [OPG summary - EPA case.] 2011-01-302010 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
TW v A City Council [2011] EWCA Civ 17 — The Court of Appeal issued a reminder of the following: (a) that the bundle of authorities should be agreed; (b) that it should be filed at least seven days before the hearing; (c) that it should not contain more than ten authorities unless the scale of the appeal warrants more extensive citation; (d) that the relevant authorities should be copied from the official law reports, and only if not should reports from the All England Law Reports (All ER) or a specialist law report series be included. In addition, if a case is reported in volume 1 of the Weekly Law Reports that report should be used in preference to the report in the All ER. BAILII judgments (with neutral citation numbers) should only be used if no other recognised reports were available and the case really needs to be cited; and (e) that the passages in the authorities which were relevant and on which counsel sought to rely must be marked. 2011-01-242011 cases, Brief summary, ICLR summary, Miscellaneous, No transcript
Re P (2010) COP 23/12/10 (Mostyn J) — There was effectively a presumption against deprivation of liberty (pursuant to MCA 2005 s1(6)) and, on the facts, the balance tilted in favour of P returning home pending a final hearing at which full evidence could be considered. [Summary based on counsel's case report.] 2011-01-232010 cases, Brief summary, Deprivation of liberty, No transcript
Re Williams (2010) COP 1/12/10 — The donor appointed three attorneys to act jointly. She then added: "The attorneys are only to make decisions jointly and should any of the attorneys die within my lifetime I wish for their personal representative to take over as my attorney in their place." On the application of the Public Guardian the court severed this provision on the ground that section 10(8)(a) of the MCA provided that an LPA instrument could not give the attorney power to appoint a substitute or successor. [Note: The provision could also be viewed as incompatible with the nature of a joint appointment.] [OPG summary - LPA case.] 2011-01-072010 cases, Brief summary, LPA cases - all, LPA cases - appointment of substitute by an attorney, No transcript
Re Warren (2010) COP 10/12/10 — The donor appointed four attorneys, A, B , C and D, to act jointly for some decisions and jointly and severally for others. She imposed the following restriction: "All decisions will be made by my first attorney A unless and until such time that he no longer has the mental capacity to do so. Should A no longer have the mental capacity to make decisions the remaining attorneys will jointly make decisions regarding the house and property and jointly and severally make decisions concerning finance." On the application of the Public Guardian the words preceding "attorneys will jointly" were severed on the ground that, where attorneys were appointed to act jointly in some matters and jointly and severally in others, it was not open to the donor to provide that one attorney should act alone for so long as he was able to do so. The Senior Judge added that, to have achieved the desired objective, the donor should have appointed A as the sole attorney and the three others as replacement ..→2011-01-072010 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript
Re Weyell (2010) COP 2/12/10 — The donor appointed three attorneys, A, B and C, to act jointly for some decisions and jointly and severally for others. He then imposed the following restrictions: (1) "Two out of three of my attorneys must act jointly in relation to any transaction with a value in excess of £5,000 and my attorneys may act jointly and severally in relation to everything else." (2) "I direct that when acting jointly and severally where possible my attorneys are to act in the following order of priority: firstly A, then B and then C." On the application of the Public Guardian the first restriction was severed as being incompatible with the joint aspect of the appointment. In the application the Public Guardian submitted that, while a direction that attorneys appointed to act jointly and severally must act in an order of priority would normally be regarded as incompatible with a joint and several appointment, the addition of the words "where possible" made the direction in effect a statement of ..→2011-01-072010 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript
Re HM; PM v KH [2010] EWHC 871 (Fam) — Best interests case. [Transcript and summary required.] 2011-01-062010 cases, Best interests, Missing from Bailii, No summary, No transcript
Re Freeman (2010) COP 7/9/10 — The donor signed Part B of the EPA instrument on 14 April 2006, but the attorney did not sign Part C until 3 October 2008. The Public Guardian refused to register on the ground that an instrument could not be a valid EPA unless the attorney had signed before 1 October 2007. Section 66(2) of the Mental Capacity Act 2005 provides that an EPA cannot be "created" after commencement. On the attorney's application the court declared that the instrument was not a valid EPA. (The attorney applied for a reconsideration but the Judge confirmed his earlier decision by an order made at a hearing on 28 February 2011.) (Note: The Public Guardian will register an EPA appointing joint and several attorneys if at least one attorney signed before 1 October 2007 even though other(s) did not, in which case registration will be limited to the attorney(s) who signed before that date.) [OPG summary - EPA case.] 2010-12-012010 cases, Brief summary, EPA cases - all, EPA cases - whether the instrument was validly executed, No transcript
Re Baker (2010) COP 12/11/10 — The donor of a property and affairs LPA included the following provision: "I authorise my Attorneys to make gifts from my assets on such terms and conditions as they think fit, for the purposes of inheritance tax planning, including but not restricted to the making of gifts in line with the annual lifetime gift allowance." On the application of the Public Guardian the provision was severed on the grounds that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2010-11-282010 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Jass (2010) COP 26/10/10 — The donor of a property and affairs LPA included the following provision: "I hereby authorise my attorneys to give gifts on my behalf at my attorneys' discretion up to the exempt amount permitted by sections 19 (Annual Exemption), 20 (Small Gifts) and 22 (Marriage/Civil Partnership Gifts) of the Inheritance Act 1984 (or such other legislation or provision as may supersede these sections) for the time being in force." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2010-11-282010 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Moore (2010) COP 26/10/10 — The donor appointed three attorneys to act jointly. She then imposed the following restriction: "At least two attorneys to act on any transactions". On the application of the Public Guardian the court severed the restriction as being incompatible with a joint appointment. [OPG summary - LPA case.] 2010-11-282010 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint appointment, No transcript
Re Hartup (2010) COP 28/10/10 — (1) The donor appointed two attorneys, A and B, to act jointly and severally, and two replacement attorneys. He then imposed the following restriction: "My wife A is to take the lead in all decisions." On the application of the Public Guardian the restriction was severed as being incompatible with a joint and several appointment. (2) The donor made two LPAs, one for property and financial affairs and the other for health and welfare. In both instruments he appointed A (his wife) and B as primary attorneys, to act jointly and severally, and C and D as replacement attorneys. In the property and financial affairs instrument he imposed the following restriction: "Should my wife be unable to continue to act severally as my attorney, then B and my two replacement attorneys are to act on my behalf. They must act jointly in relation to decisions about selling my house or they may act jointly and severally in everything else." In the health and welfare instrument he imposed the following ..→2010-11-282010 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to how a replacement attorney may act, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Ferguson (2010) COP 26/10/10 — The donor appointed three attorneys, A, B and C, to act jointly and severally. She then imposed the following restrictions: "I wish my attorneys to act as follows: A to act independently. B and C to act only in the event that A is deceased or unable to act. In these circumstances B and C may act independently." "I wish my attorneys to act only when I lack capacity to act. A may judge for himself when I lack capacity to act. B and C must agree together that I lack capacity to act. Alternatively, should either of them wish, then at my expense they may seek medical and, if necessary, legal advice as to whether or not I have capacity to act." On the application of the Public Guardian both restrictions were severed as being incompatible with a joint and several appointment. [OPG summary - LPA case.] 2010-11-282010 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Orriss (2010) COP 20/10/10 — By mistake the donor's surname was omitted from the instrument, which included only his first and second names. The EPA was registered without the mistake being discovered. On the application of the attorney the court directed the Public Guardian to attach a note to the EPA stating that the donor's surname had been omitted in error from Part B. [OPG summary - EPA case.] 2010-11-282010 cases, Brief summary, EPA cases - all, EPA cases - rectification, No transcript
Re Williamson (2010) COP 25/10/10 — The donor appointed A, B and C to act jointly. He then imposed the following restriction: "The said B and C shall not exercise their authority under this Power whilst my wife is alive and able to act as my attorney." On the application of the attorneys the court severed the restriction as being incompatible with a joint appointment. [OPG summary - EPA case.] 2010-11-282010 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint appointment, No transcript
Re Dickenson (2010) COP 12/11/10 — The donor appointed two attorneys to act jointly and severally and imposed the following restriction: "My professional Attorneys may at any time appoint a substitute to act as my attorney and may revoke the appointment without giving reason. Every appointment is to be in writing signed by my Attorney. Every substitute has full powers as my attorney, as if appointed by this Deed, except the power to appoint a substitute." On the application of an attorney the court severed the restriction. Paragraph 2(6) of Schedule 4 of the MCA 2005 provides that "A power of attorney which gives the attorney a right to appoint a substitute or successor cannot be an enduring power." [OPG summary - EPA case.] 2010-11-282010 cases, Brief summary, EPA cases - all, EPA cases - appointment of substitute by an attorney, No transcript
Re P and OM (2008) COP 26/11/08 — The Court: (1) granted a worldwide freezing injunction over the assets of a son alleged to have to wrongfully obtained the proceeds of the sale of a house belonging to his incapacitated mother; and (2) made a declaration requiring the son to return his mother, a British citizen now in Guyana, to the United Kingdom for the purposes of assessment of her capacity, inter alia, to make decisions concerning her health and welfare. The Court determined (it appears for the first time) that it had the jurisdiction under paragraph 7 of Schedule 3 to the Mental Capacity Act 2005 to make decisions regarding the health and welfare of an incapacitated adult in a foreign country on the basis that they were habitually resident in England and Wales. [Summary from 39 Essex Street website.] 2010-11-172008 cases, Brief summary, No transcript, Other capacity cases
Re John (2010) COP 14/10/10 — The donor made an LPA using the "old" form prescribed in 2007. She appointed an original attorney and a replacement attorney, but the replacement attorney's Part C omitted his date of birth, and it could not be inferred from the instrument that he was at least 18. The usual practice of the Public Guardian in such a case is to request a fresh Part C, but this could not be done because the donor had lost capacity (see Re Sporne (2009) COP 13/10/09). The instrument was registered, with registration being limited to the original attorney, but the attorney then applied to court to have the defective Part C "reinstated". The Public Guardian was joined as a party. The court ruled that the LPA was not in the prescribed form because of the failure to include the replacement attorney's date of birth. As the court was satisfied on the evidence that the replacement attorney was in fact at least 18, it exercised its discretion under paragraph 3(2) of Schedule 1 of the MCA (which is set out ..→2010-10-272010 cases, Brief summary, LPA cases - all, LPA cases - date of birth of attorney missing, No transcript
Re Thrussell (2010) COP 12/10/10 — The donor directed her attorneys to consult with X "in respect of any major decision". On the application of the Public Guardian the court severed this provision on the grounds that it was so uncertain as to be unworkable. [OPG summary - LPA case.] 2010-10-272010 cases, Brief summary, LPA cases - all, LPA cases - severance of unreasonable, impractical or uncertain conditions, No transcript
Re Warner (2010) COP 31/8/10 — The donor made an LPA appointing A as the original attorney and B and C as replacement attorneys, the latter to act jointly. She imposed the following restriction in relation to the replacement attorneys: "If for any reason one of my replacement attorneys is unable or unwilling to act, the remaining replacement attorney is then permitted to act solely under my LPA". On the application of the Public Guardian the restriction was severed as being incompatible with the joint appointment of the replacement attorneys. [OPG summary - LPA case.] 2010-10-272010 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint appointment, No transcript
Re Devine (2010) COP 13/10/10 — The attorney's signature in Part C was witnessed but the witness did not sign his name. On the application of the attorney the court declared that the instrument was defective in a material respect and did not take effect as an EPA. [OPG summary - EPA case.] 2010-10-252010 cases, Brief summary, EPA cases - all, EPA cases - whether the instrument was validly executed, No transcript
Re SB (2010) COP 19/10/10 — (1) SB lacked capacity to consent to potentially life-saving treatment for aplastic anaemia. (2) It was lawful for the clinicians to administer the treatment and restrain her for that purpose; also, if the they decided that it was too distressing, they could decide to stop. [Summary based on press report.] 2010-10-202010 cases, Best interests, Brief summary, No transcript
Grant v MHRT (1986) The Times 28/4/86 — The Tribunal has no power to make statutory recommendations under s72(3) in restricted cases. 2010-10-111986 cases, Brief summary, No transcript, Powers
R (Martins) v Cannons Park MHRT (1995) 26 BMLR 134 — The eligibility of an un-recalled conditionally discharged patient to apply to the Tribunal under s75(2) is calculated, not from the date of a deferred conditional discharge decision, but from the date of actual release from detention in hospital under conditional discharge. 2010-09-271995 cases, Brief summary, Deferred conditional discharge, No transcript
Re M Crook (2010) COP 16/7/10 — The donor's Health and Welfare LPA included an invalid restriction. A further defect was that she had not entered the date on which she executed Part A of the instrument in section 10, nor had she dated section 5 when selecting Option A. The Public Guardian does not regard a failure to execute the Options section as invalidating the instrument, but a failure to date Part A will normally do so. However, in this case the Public Guardian was prepared to infer that both sections had been executed on 13 October 2009, as Continuation Sheet A1 had been signed on that date, and so was the Part B certificate. In addition, the certificate provider had witnessed the Part A signatures. When applying for severance of the invalid restriction, the Public Guardian requested the court to direct that Part A was to be treated as having been signed on 13 October 2009, to avoid any challenges by third parties. The court accordingly included a provision in the order to the effect that sections 5 and 10 ..→2010-09-022010 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument has been correctly executed, No transcript
Re Lan (2010) COP 10/8/10 — The donor appointed two attorneys to act jointly and severally. She then imposed the following restriction: "Any major decisions should be discussed between my attorneys so that a joint agreement to the matter can be achieved." On the application of the Public Guardian this restriction was severed as being incompatible with a joint and several appointment. [OPG summary - LPA case.] 2010-09-022010 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Farrow (2010) COP 18/8/10 — The donor appointed A to be her attorney and then appointed B to act in the event that A should be unable or unwilling to act or died. The donor then stated that A and B should act jointly and severally. On the application of the attorneys the court severed the words "jointly and severally", so that the instrument could be registered as an EPA appointing A as primary attorney and B as substitute attorney. [OPG summary - EPA case.] 2010-09-022010 cases, Brief summary, EPA cases - all, EPA cases - appointment by donor of substitute attorneys, No transcript
Re Cotterell (2010) COP 3/8/10 — The donor appointed two attorneys to act jointly and severally, and imposed the following restriction: "My second named attorney may only act as my attorney if a general medical practitioner certifies that I am mentally incapable of managing my affairs and in this instance, if my first attorney is alive and mentally capable, may only act on my behalf in relation to a sale of the property which at that time is deemed to be my principal place of residence. If however my said first named attorney has passed away or is deemed by a general medical practitioner as incapable then my second named attorney may act generally on my behalf subject to no restrictions." On the application of the Public Guardian the restriction was severed as being incompatible with a joint and several appointment. [OPG summary - LPA case.] 2010-08-162010 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Porter (2010) COP 26/7/10 — The donor appointed his wife and two children as attorneys, to act jointly and severally. He added the following restriction: "My wife may act alone during her lifetime and whilst she is mentally capable. My children shall act jointly." On the application of an attorney the court severed the restriction as being incompatible with a joint and several appointment. [OPG summary - EPA case.] 2010-08-162010 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Mark Reeves (2010) COP 5/1/10 — The Council, relying on a recent Court of Appeal judgment in relation to double recovery, compelled P's deputy to make an application to the Court of Protection for authorisation to apply for public funding. (1) The application was misconceived in seeking to apply the recent CA decision to this case which had been determined six years previously; (2) the Court of Protection is not an appropriate forum to adjudicate on double recovery in personal injury proceedings. 2010-08-082010 cases, Brief summary, No transcript, Other capacity cases
Gale v Gale [2010] EWHC 1575 (Ch) — The 2002 and 2004 codicils to a will were forgeries; also, the testatrix did not have testamentary capacity at the time of the 2004 codicil; in any event, neither was signed on the date it purported to be signed but was backdated from a time when the testatrix did not retain testamentary capacity. 2010-08-072010 cases, Brief summary, Missing from Bailii, No transcript, Other capacity cases
R (Davison) v SSJ (2010) All ER (D) 258 (Jul) — The first order was a s37/41 restricted hospital order. The second order was an unrestricted s37 hospital order, but an administrative error by the court clerk led to the belief that it was also a s37/41 order. The Tribunal conditionally discharged the patient; the SSJ absolutely discharged the first order as being unnecessary, but subsequently discovered the administrative error. The SSJ judicially reviewed himself. The administrative error constituted a mistake of fact that amounted to an error of law: the absolute discharge decision was unlawful and was quashed, making the patient again subject to the conditional discharge regime. 2010-07-272010 cases, Brief summary, Ministry of Justice, No transcript
SH v NB (Marriage: Consent) [2009] EWHC 3274 (Fam) — The marriage between a 27-year-old Pakistani man and a 16-year-old English girl would be valid only if both of the parties had, according to the law of their respective ante-nuptial domiciles, validly consented to marry the other: (1) under Pakistani law the marriage was invalid; (2) under English law, the court declared that the marriage was invalid because the girl's free will had been overborne as a result of the pressure exerted upon her; it was voidable but now too late to issue a decree of nullity. 2010-07-232009 cases, Brief summary, Missing from Bailii, No transcript, Other capacity cases
Re HM; PM v KH [2009] EWHC 2685 (Fam) — Best interests case. [Transcript and summary required.] 2010-07-192009 cases, Best interests, Missing from Bailii, No summary, No transcript
R v Patsalosavvis [2010] EWCA Crim 1383 — The appellant had received a restricted hospital order for making bomb hoax calls; the restriction order was quashed. 2010-07-102010 cases, Brief summary, No transcript, Restriction order cases
R v Hutchinson [2010] EWCA Crim 1364 — IPP quashed and, based on new evidence, replaced with restricted hospital order. 2010-07-102010 cases, Brief summary, Missing from Bailii, No transcript, Sentence appeal cases
R v Orchard [2010] EWCA Crim 1538 — The concurrent sentences of two years' imprisonment were appealed on the basis that (i) they were at the top end of the sentencing guidelines bracket and (2) the learned judge did not take sufficient account of the circumstances of the offence, namely that the appellant was at the material time a psychiatric patient. The sentences were reduced to 18 months' imprisonment. 2010-07-102010 cases, Brief summary, No transcript, Sentence appeal cases
Re Davies (2010) COP 5/7/10 — The donor appointed two attorneys, A and B, to act jointly and severally. He then imposed the following restriction: "If in the unlikely event of A and B not being wholly in agreement, B is to defer to the wishes of A." On the application of the Public Guardian the court severed the restriction as being incompatible with a joint and several appointment. [OPG summary - LPA case.] 2010-07-092010 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re P Crook (2010) COP 2/7/10 — The donor appointed one primary attorney and three replacement attorneys, the latter to act jointly and severally. He then imposed the following restriction: "Provided I have more than two attorneys capable of acting under this power then any decision as to the exercise of any power or discretion reached by the majority of such attorneys (acting in their capacity as attorneys) shall bind all my attorneys to the extent that no attorney of mine can take issue with the decision reached by that majority." On the application of the Public Guardian the court severed the restriction as being incompatible with a joint and several appointment. [OPG summary - LPA case.] 2010-07-092010 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re D'Argenio (2010) COP 9/6/10 — The donor made a property and financial affairs LPA and a health and welfare LPA. In both she appointed six attorneys to act jointly and severally. In the property and affairs LPA she imposed the following restriction: "My atorneys must act jointly in relation to decisions about selling my house. They may act jointly and severally in everything else." In the health and welfare LPA she imposed the following restriction: "My attorneys must act jointly in relation to decisions I have authorised them to make about life-sustaining treatment and where I live. They may act jointly and severally for everything else." On the application of the Public Guardian the court severed both restrictions as being incompatible with a joint and several appointment. [OPG summary - LPA case.] 2010-07-092010 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Pattison (2010) COP 11/5/10 — The donor appointed three attorneys, A, B and C, to act jointly and severally. A and B were her daughters. She then imposed the following restriction: "I direct that not less than two of my attorneys shall act whilst there are two alive and capable of acting and that initially those two shall be my two daughters." On the application of the attorneys the court directed severance of the restriction as being incompatible with a joint and several appointment. [OPG summary - EPA case.] 2010-07-092010 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
R (ZN) v South West London and St George's Mental Health NHS Trust (2010) CO/9457/2009 — The de facto detention of an informal incapacitous patient, and the series of detentions under s5(2), was unlawful. (Claim settled by consent.) 2010-06-282010 cases, Brief summary, Deprivation of liberty, No transcript, Unlawful detention cases
R v Shulman [2010] EWCA Crim 1034 — (1) For the convictions the court substituted findings that the appellant was under a disability at the time of trial, namely he was unfit to plead, and that he did the acts charged against him. (2) In respect of each count a restricted hospital order was imposed, in place of the prison sentences. 2010-05-222010 cases, Brief summary, Missing from Bailii, No transcript, Unfitness and insanity cases
R v Osker [2010] EWCA Crim 955 — Successful appeal against restriction order. [Summary required.] 2010-05-062010 cases, Missing from Bailii, No summary, No transcript, Restriction order cases
Re Candy (2010) COP 18/3/10 — The donor appointed two attorneys to act jointly and severally. She then imposed the following restriction: "neither of my attorneys will act without the approval of the other". On the application of the attorneys the court severed the restriction as being inconsistent with a joint and several appointment. [OPG summary - EPA case.] 2010-04-112010 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Swift (2010) COP 30/3/10 — The donor had been appointed to act as attorney under LPAs made by his wife. In his own LPA for property and financial affairs he stated as follows: "In the event that I become incapacitated and am unable to take decisions in my role as Attorney to my wife, I appoint both my Attorneys as Guardians of my wife in order that they may, together, take decisions about her property and affairs." He included an equivalent provision in his LPA for health and welfare. On the application of the Public Guardian the court severed these provisions as being ineffective because the MCA does not permit an attorney to appoint a substitute or successor to himself. (OPG summary - LPA case.) 2010-04-072010 cases, Brief summary, LPA cases - all, LPA cases - appointment of substitute by an attorney, No transcript
Re McAdam (2010) COP 29/3/10 — The donor had named X, one of two original attorneys (who had been appointed to act jointly and severally), as the only named person. On the application of the Public Guardian the court severed the appointment of X as attorney on the ground that the MCA does not permit an attorney to be a named person. The instrument was directed to be registered as an LPA appointing only the other attorney. (OPG summary - LPA case.) 2010-04-072010 cases, Brief summary, LPA cases - all, LPA cases - attorney or replacement attorney as a named person, No transcript
Re Saunders (2010) COP 30/3/10 — The donor appointed two attorneys and a replacement attorney. He stated that the replacement should act only if the power given to the original attorneys "is revoked by me" or terminated by death, disclaimer or incapacity. He further stated that the power of his attorneys "shall only come into force only if and when my attorneys have presented medical evidence to the Court and the Court are satisfied that I am or am becoming incapable by reason of mental disorder of managing and administering my property and affairs". On the application of the Public Guardian the condition requiring the attorneys to present medical evidence to the court was severed because, although it was not invalid, it imposed an unreasonable and impractical fetter on the attorneys. The words "is revoked by me" were also severed as being incompatible with section 10(8)(b) of the MCA (revocation of an attorney's appointment is not an event upon which a replacement attorney may act). (OPG summary - LPA case.) 2010-04-072010 cases, Brief summary, LPA cases - all, LPA cases - severance of unreasonable, impractical or uncertain conditions, No transcript
Re Akpabio (2010) COP 15/3/10 — The donor made an EPA appointing two attorneys to act jointly and severally. He included the following restriction: "I want them to act jointly on important matters concerning my welfare including any future living arrangements and on any large financial decisions such as selling my property." On the application of the attorneys the court severed the restriction as being incompatible with a joint and several appointment. [OPG summary.] 2010-03-242010 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
R (Hagan) v Anglia and Oxfordshire MHRT (1999) MHLR 204 — In relation to the powers as to classification and reclassification of categories of mental disorder that existed under the MHA 1983 before its amendment by the MHA 2007, the question to be asked as to the use of the power was whether the patient had a mental disorder in a particular category (even if it was in remission) not whether that mental disorder was such as to justify detention. Accordingly, a Tribunal was not required to reclassify a patient who had been detained on the basis of 2 forms of disorder as being detained only under 1 form when the other was in remission and would not justify detention. [MHLR.] 2010-02-261999 cases, Brief summary, MHLR summary, No transcript, Other classification cases
R (Moyle) v London South and South West Region MHRT (1999) MHLR 195 — A Tribunal is not acting in an appellate or review jurisdiction, but exercising an original jurisdiction in which it forms an evaluative judgment as to whether the criteria for discharge are made out; as such, it may disagree with the evidence in front of it. When the illness is one that will relapse in the absence of medication, the appropriateness of liability to detention depends on an assessment of the probability of relapse in the near future. (At the time, the test for discharge placed the burden of proof on the patient and so the patient had to show that there was no probability of relapse to demonstrate that the nature of the illness did not justify detention; it was also held that the admission criteria had to be considered, but in the context of the burden of proof being reversed. Its conclusion that the admission criteria were not relevant meant that there was an error of law that led to the decision being quashed.) [MHLR.] 2010-02-261999 cases, Brief summary, MHLR summary, No transcript, Powers
Bath and North East Somerset Council v AJC (1999) MHLR 184 — As a Tribunal order for discharge had not been challenged, it had to be given effect, despite the local authority’s view that it was invalid: the purported renewal was therefore of no effect. [MHLR.] 2010-02-261999 cases, Brief summary, MHLR summary, Miscellaneous, No transcript
Re D (mental patient: nearest relative) (1999) MHLR 181 — The approach to whether a relative “cares for” a patient so as to become their nearest relative by reason of s26(4) Mental Health Act 1983 involves the provision of more than minimal care services; the social worker’s decision as to who “appears to be” the nearest relative for the purposes of consultation under s11(4) of the Act has to involve an acceptable approach to the question of who is the nearest relative but did not require the making of enquiries (unless it would be irrational not to make enquiries). [MHLR.] 2010-02-261999 cases, Brief summary, Consulting NR, MHLR summary, No transcript
JF v LB Hackney, Re TF (A Child: Guardianship) (1999) MHLR 175 — A desire to return to an inadequate home is not “seriously irresponsible” and so cannot found a conclusion that there is mental impairment. [MHLR.] 2010-02-261999 cases, Brief summary, MHLR summary, Miscellaneous, No transcript
R v Aspinall (Paul James) (1999) MHLR 12 — The failure to follow the requirements to have an appropriate adult in the interview of a mentally disordered suspect meant that, despite his apparent lucidity in interview, it was unfair to admit it in evidence. [MHLR.] 2010-02-261999 cases, Brief summary, MHLR summary, No transcript, Other criminal law cases
R (Munday) v SSJ [2009] EWHC 3638 (Admin) — The MoJ's decision to recall the claimant, although contrary to the RMO's advice, was not Wednesbury unreasonable or otherwise flawed on conventional public law grounds: the disagreement was not on medical grounds but on whether, given the history of arson and recent disengagement, a mere allegation of and arrest for arson was sufficient justification for recall. 2010-02-072009 cases, Brief summary, Ministry of Justice, Missing from Bailii, No transcript
Re Bax (2009) COP 22/10/09 — The donor appointed A and B to act jointly, and then provided that "In the event A is unable or unwilling to act as my attorney then I appoint C." On the attorneys' application the court severed the appointment of C. Although a donor may appoint a substitute attorney, the appointment must not be incompatible with a joint appointment of the original attorneys. [OPG summary - EPA cases.] 2010-01-202009 cases, Brief summary, EPA cases - all, EPA cases - appointment by donor of substitute attorneys, No transcript
Re Bullock (2009) COP 15/12/09 — The certificate providers did not tick the box to confirm that they had discussed the LPA with the donor and that the attorney was not present. The donor was in hospital and the certificate providers had discussed the LPA with the donor at his bedside, the attorney being present throughout. The Public Guardian refused registration on the ground that the instrument was not in prescribed form. The court, in the exercise of its discretion, declared under paragraph 3(2) of Schedule 1 of the MCA 2005 that the instrument, which was not in the prescribed form, should be treated as if it were. Registration was directed accordingly. [OPG summary.] 2010-01-122009 cases, Brief summary, LPA cases - all, LPA cases - where attorney present when certificate provider interviews the donor, No transcript
Re Helmsley (2009) COP 30/11/09 — The donor executed two instruments intended to be LPAs. In Part A of both instruments she omitted to tick the box to confirm that she gave her attorneys authority to act on her behalf in circumstances when she lacked capacity. The Public Guardian refused registration on the ground that the instruments were not in prescribed form. On the attorneys' application, the court exercised its discretion under paragraph 3(2) of Schedule 1 of the MCA 2005 and declared that the instruments, although not in prescribed form, were to be treated as if they were. Registration was directed accordingly. [OPG summary.] 2010-01-122009 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument is in prescribed form, No transcript
Re Smith (2009) COP 7/12/09 — In Part C of the EPA the attorney had deleted the words "I also understand my limited power to use the donor's property to benefit persons other than the donor". On the attorney's application, the court was satisfied that the deletion was made in error, and directed that the instrument should be read as if the wording had not been deleted. [OPG summary - EPA case.] 2010-01-122009 cases, Brief summary, EPA cases - all, EPA cases - rectification, No transcript
Re Allen (2009) COP 21/7/09 — Under MCA 2005 s4(7) any best interests decision-maker "must take into account, if it is practicable and appropriate to consult them, the views of" various categories of individuals. Where any attempt at consultation will inevitably be unduly onerous, futile, or serve no useful purpose, it cannot be in P’s best interests, and it would be neither practicable nor appropriate to embark on that process in the first place. 2009-12-142009 cases, Best interests, Detailed summary, No transcript
Re Cloutt (2008) COP 7/11/08 — The donor made an EPA in October 2000 appointing NatWest Bank as attorney. This was registered in March 2008. In April 2008 the donor executed an instrument intended to be a Lasting Power of Attorney, appointing a different attorney, and executed a deed revoking the EPA. In the LPA the Part B certificate was provided by a medical practitioner, who had confirmed that he was satisfied that the donor was able to make an LPA. In June 2008 the LPA attorney applied to court for an order confirming the revocation of the EPA (as required by paragraph 15 of Schedule 4 of the MCA). The Senior Judge made a directions order in August 2008 requiring the submission of further evidence on the ground that the revocation of an EPA is a different transaction from the creation of an LPA, and capacity to create an LPA is not necessarily the same as capacity to revoke an EPA. Thus a doctor’s certification of an LPA is not of itself sufficient proof of capacity to revoke an EPA. On considering the ..→2009-11-292008 cases, Brief summary, EPA cases - all, EPA cases - capacity to revoke EPA - test is not the same as for creation of LPA, No transcript
Re Portues (2009) COP 6/1/09 — In Part B of the instrument the donor appointed attorneys to act jointly and severally and struck out the words “with general authority to act”, leaving in place the words “with authority to do the following”. She did not include any instructions under those words to indicate the scope of the attorneys’ powers. On the application of the attorney for rectification of the instrument, the court was satisfied that it was the donor’s intention to confer general authority on the attorneys and that the deletion of those words was a clerical error. The court declared that the EPA was to be read and construed as if the donor granted general authority to the attorneys and directed the Public Guardian to reconsider the registration of the EPA in the light of the declaration. [OPG summary - EPA case.] 2009-11-292009 cases, Brief summary, EPA cases - all, EPA cases - rectification, No transcript
Re Sawyer (2009) COP 31/3/09 — In Part B of the EPA the donor appointed four attorneys, but omitted to strike out either option "jointly" or "jointly and severally" in relation to how they should act. On the application of the attorneys, the court was satisfied that the donor had intended to appoint them to act jointly and severally, and directed that the EPA should be construed as if they had been appointed jointly and severally and the alternative option "jointly" had been deleted. The Public Guardian was directed to attach a note to that effect to the registered EPA. [OPG summary - EPA case.] 2009-11-292009 cases, Brief summary, EPA cases - all, EPA cases - rectification, No transcript
Re Corbett (2008) COP 4/12/08 — A restriction in an EPA which had been registered in 2006 contained the following restriction: “No transaction with a value greater than £500 to be actioned without the written permission of my son SC.” The attorney applied for an order removing the restriction on the grounds that SC’s whereabouts were unknown and had not been heard from for 12 months. The attorney wished to sell the donor’s house to pay for care home fees. The court determined that, having regard to all the circumstances, the restriction was an unreasonable fetter on the scope of the attorney’s authority, and was having an adverse impact on the management and administration of the donor’s property and affairs. The restriction was accordingly severed and the Public Guardian was directed to register a note to that effect. [OPG summary - EPA case.] 2009-11-292008 cases, Brief summary, EPA cases - all, EPA cases - severance of restriction fettering authority of attorney, No transcript
Re Shepherd (2009) COP 13/3/09 — The donor appointed three attorneys to act jointly, adding the words "Any two out of the three attorneys shall have power to sign jointly on my behalf". The court severed these words as being incompatible with a joint appointment. [OPG summary - EPA case.] 2009-11-292009 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint appointment, No transcript
Re Bainbridge (2009) COP 10/3/09 — The donor appointed her three children to act jointly, adding the restriction "PROVIDED THAT in the event that any one or more of my said children shall die or shall for any other reason be unable to act as my Attorneys then I appoint my remaining children to be my Attorneys for the purpose of the Enduring Powers of Attorney Act 1985 and in the event that only one of my said children shall be able to act as my Attorney then I appoint him/her as my sole Attorney for the purposes of the Enduring Powers of Attorney Act 1985." On the application of the attorneys under paragraph 4(5) of Schedule 4 of the Mental Capacity Act 2005 to determine whether the power was valid, the court severed the restriction as being incompatible with a joint appointment. (OPG summary.) 2009-11-292009 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint appointment, No transcript
Re Rayner (2009) COP 9/6/09 — The donor appointed A and B as attorneys to act jointly and severally with general authority to act in relation to all her property and affairs. She then imposed a restriction, stating that A and B should not act in relation to properties jointly owned with the donor, and that C was appointed as attorney in relation to these properties. On the application of the attorney the restriction was severed, with the result that A and B could act in relation to all the donor's property and affairs and C could not act. [OPG summary - EPA case.] 2009-11-292009 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Meaker (2009) COP 16/6/09 — The donor appointed two attorneys to act jointly and severally. She added the following restriction: "My attorneys shall act jointly at all times unless the death, incapacity or bankruptcy of either one of them shall preclude her from acting, in which case the other Attorney shall continue to act alone". On the application of the attorney the restriction was severed as being ineffective as part of an EPA. (OPG summary.) 2009-11-292009 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Dunningham (2009) COP 15/9/09 — (1) In Re Dunningham: The donor appointed two attorneys, A and B, to act jointly and severally. She then imposed the following restriction: "and the said B shall have no authority to act on my behalf unless the said A has died or is incapable of acting as my Attorney". On the application of the attorneys for severance, the court severed the restriction as being inconsistent with a joint and several appointment. (2) In Re Taylor: on similar facts, the court severed the words 'jointly and severally' [OPG summaries - EPA cases.] 2009-11-292009 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Bridge (2009) COP 25/9/09 — The donor appointed three attorneys to act jointly and severally. He imposed the following restriction: "2 of the 3 can deal with any household or every day expenses, but for any other issues I would like all 3 attorneys to be signatories. In particular I would not like my house to be sold or money to be invested without agreement and signatory from all 3. My money and assets are to be used to cover my care and living expenses in old age and ill health." On the application of an attorney the court directed severance of the restriction as being ineffective as part of an EPA. (OPG summary.) 2009-11-292009 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Wills (2008) COP 20/11/08 — The donor appointed three attorneys to act jointly and severally. She then imposed the following restriction: “Although I have appointed my Attorneys to act jointly and severally, I require that at least two of them shall sign any cheque on my behalf for a sum in excess of £500 or act in any transaction worth over £500.” On the application of the attorneys to determine whether the power was valid, the court severed the restriction. (OPG summary.) 2009-11-292008 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Blair (2008) COP 1/10/08 — The donor appointed two attorneys to act jointly and severally, and contained the following restriction: “For single transactions of a value in excess of £500 (five hundred pounds) then I declare my attorneys shall act jointly as against jointly and severally.” On the application of the attorneys under paragraph 4(5) of Schedule 4 of the MCA to determine whether the power was valid, the court severed the restriction. (OPG summary.) 2009-11-292008 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Robinson (2009) COP 18/9/09 — An EPA provided that "My Attorneys shall have power to deal with my affairs from time to time as may be necessary to reduce the incidence of Inheritance Tax at the date of my death provided that lump sum payments shall only be made to or on behalf of such persons who would otherwise receive the benefit of my estate as residuary beneficiaries (either original or substituted) of my Will." On the application of the attorneys the court severed this restriction on the ground that it would be ineffective as part of an EPA (because it exceeded the statutory power to make gifts under Sched 4 paragraph 3 of the MCA). [OPG summary - EPA case.] 2009-11-292009 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with an EPA, No transcript
Re Hollins (2009) COP 10/6/09 — In Part B of the instrument, under the heading "subject to the following restrictions and conditions", the donor wrote "See attached supplement". The attached supplement listed extended powers, including: (1) Extended powers to deal with my affairs, (2) Power to consent to medical treatment, and (3) Extended power to make gifts. The Public Guardian refused registration on the ground that the first two of the above provisions did not relate to the donor's property and affairs, and that the third was inconsistent with Schedule 4, para 3(3) of the Mental Capacity Act. On the attorney's application, the court directed severance of the attached supplement and the reference to it in Part B of the instrument. [Full details of supplement available on case page.] 2009-11-292009 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with an EPA, No transcript
Re Viveash (2009) COP 21/9/09 — An EPA provided that "I grant to my attorneys the power to deal with all matters concerning my welfare health and matters of a personal nature to me and all other matters affecting me or my possessions." On the application of the attorneys the court severed the restriction on the ground that it would be ineffective as part of an EPA. [OPG summary - EPA case.] 2009-11-292009 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with an EPA, No transcript
Re King (2009) COP 14/7/09 — An EPA provided that "In case that I am unable to take part in decisions about my medical care then I appoint my Attorney to represent my views about them if I am unable to do so". On the application of the attorney the court severed this provision on the ground that it would be ineffective as part of an EPA. (OPG summary.) 2009-11-292009 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with an EPA, No transcript
Re Ditcham (2009) COP 12/5/09 — An EPA provided that "my attorney(s) may take decisions on where I shall live provided that these decisions are made in my best interests and may negotiate with Social Services and any other relevant authorities to secure the best treatment and accommodation on my behalf that can be provided". On the application of the attorneys the court severed this provision on the ground that it would be ineffective as part of an EPA. (OPG summary.) 2009-11-292009 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with an EPA, No transcript
Re Heartfield (2008) COP 17/6/08 — The donor stated in the EPA: “I delegate all my trustee functions and powers whether conferred by statute, general law or a trust instrument to my attorneys”. On the application of the attorney the court determined that the provision was ineffective as part of an EPA and severed it. [OPG summary - EPA case.] 2009-11-292008 cases, Brief summary, EPA cases - all, EPA cases - delegation of trustee functions, No transcript
Re Vallet (2009) COP 27/1/09 — The original EPA could not be produced, nor was there a certified copy in existence. Regulation 24(2) of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 provides that, in such a case, the Public Guardian must not register without an order of the court. On the application of the attorney the court declared that it was satisfied that the copy was a copy of the original EPA, which had been lost but not revoked, and directed registration. [OPG summary - EPA case.] 2009-11-292009 cases, Brief summary, EPA cases - all, EPA cases - registration of uncertified copy, No transcript
Re Parker (2008) COP 22/12/08 — This application concerned an EPA which had already been registered in 2007. The attorneys had signed the EPA on 25 December 1993 and the donor had signed later, on 13 January 1994. The court held that the EPA was valid, applying the unreported decision of Knox J in Re R dated 23 February 1988. (OPG summary.) 2009-11-292008 cases, Brief summary, EPA cases - all, EPA cases - whether the instrument was validly executed, No transcript
Re Wealleans (2008) COP 8/5/08 — The witness had not stated her address in the instrument, as required by Regulation 3(1) of the Enduring Powers of Attorney (Prescribed Form) Regulations 1990. On the application of the attorney the court declared pursuant to MCA Schedule 4 paragraph 2(4) that the EPA was “procedurally valid”. [Paragraph 2(4) provides that, if an instrument differs in an immaterial respect in form or mode of expression from the prescribed form it is to be treated as sufficient in point of form and expression]. [OPG summary - EPA case.] 2009-11-292008 cases, Brief summary, EPA cases - all, EPA cases - whether the instrument was validly executed, No transcript
Re Gibbs (2008) COP 9/9/08 — The certificate provider ticked the box to confirm that he had discussed the LPA with the donor and that the attorneys were not present, and also ticked the box to say that the LPA had been discussed with the donor in the presence of other persons, identified as the attorneys. The court directed that the LPA was valid (the certificate provider having confirmed by letter that he had interviewed the donor on her own as well as with the attorneys present). (OPG summary.) 2009-11-292008 cases, Brief summary, LPA cases - all, LPA cases - where attorney present when certificate provider interviews the donor, No transcript
Re Baldwin (2009) COP 14/5/09 — The donor appointed X as original attorney, Y as the replacement for X, and Z as the replacement for Y if Y was unable or unwilling to act. On the application of the Public Guardian the court directed the severance of the appointment of Z on the ground that the MCA does not permit a donor to appoint a person to take over as a second replacement attorney if the first replacement attorney starts to act and then becomes unable to act. (OPG summary.) 2009-11-292009 cases, Brief summary, LPA cases - all, LPA cases - replacement for replacement attorney, No transcript
Re Howarth (2008) COP 28/7/08 — The donor had named the replacement attorney as the only person to be notified of an application to register. MCA Schedule 1 paragraph 2(3) provides that a person who is “appointed as donee under the instrument” may not be a named person. If there was no effective named person, the instrument could only be valid if it contained two Part B certificates, but it contained only one. On the application of the Public Guardian the court directed the severance of the appointment of the replacement attorney on the ground that a replacement attorney was a person “appointed as donee under the instrument” who could not, therefore, be a named person. As the appointment of the replacement attorney was severed, the named person was not an attorney and so the instrument could be registered. (OPG summary.) 2009-11-292008 cases, Brief summary, LPA cases - all, LPA cases - attorney or replacement attorney as a named person, No transcript
Re Sporne (2009) COP 13/10/09 — The instrument had two defects: (i) the certificate provider had failed to tick the first two mandatory boxes in Part B, and (ii) the attorney had executed Part C before the certificate provider had signed Part B, contrary to Regulation 9 of the LPA, EPA and PG Regulations 2007. The Public Guardian's normal practice in such a case is to request fresh Parts B and C, but the donor had lost capacity. The attorney applied to court for the determination of the validity of the instrument. The court order recorded that, while the court could have exercised its discretion under paragraph 3(2) of Schedule 1 of the MCA in respect of the defect in Part B of the instrument, it could not exercise any discretion to validate a significant procedural error in respect of the requirements for the completion and execution of Parts A, B and C. It further recorded that the errors could not now be rectified as the donor had lost capacity. The court, therefore, refused to direct registration of the ..→2009-11-292009 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument has been correctly executed, No transcript
Re Ker (2009) COP 21/9/09 — The donor in Part A of the LPA form omitted to tick the box to confirm that he had chosen his certificate provider himself. The Public Guardian refused registration on the ground that the instrument was not in prescribed form. On the attorney's application, the court exercised its discretion under paragraph 3(2) of Schedule 1 to the MCA 2005 and declared that the instrument, although not in the prescribed form, was to be treated as if it were a lasting power of attorney. Registration was directed accordingly. (OPG summary.) 2009-11-292009 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument is in prescribed form, No transcript
Re Nazran (2008) 27/6/08 — The certificate provider had not completed the first two boxes in Part B of the instrument to confirm that he was acting independently of the donor, was not ineligible to provide a certificate, and was aged 18 or over. The attorneys applied to court for a declaration that the instrument was a valid LPA or, alternatively, that the instrument was to be treated as valid under MCA Schedule 1 paragraph 3(2). [Paragraph 3(2) provides that the court may declare that an instrument which is not in the prescribed form may be treated as if it were, if it is satisfied that the persons executing the instrument intended it to create a lasting power of attorney]. The court, in the exercise of its discretion under Schedule 1 paragraph 3(2), declared that the instrument was to be treated as if it were an LPA and registered accordingly. The Public Guardian does not have this discretion. (OPG summary.) 2009-11-292008 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument is in prescribed form, No transcript
Re Sykes (2009) 9/7/09 — The donor of a property and affairs LPA imposed a restriction stating that no gifts of any of her assets should be made other than "annual or monthly gifts already being made by me at the date of my signing this LPA by regular bank standing orders or direct debits". On the application of the Public Guardian the court severed this restriction on the ground that the gifts envisaged by the donor exceeded the attorney's authority to make gifts as set out in section 12 of the MCA 2005. (OPG summary.) 2009-11-292009 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Reading (2009) COP 25/6/09 — The donor appointed her husband and two of her children as original attorneys and a third child as replacement attorney. She added a restriction to the effect that, if her husband should predecease her, any decisions "must be agreed by all four of my children". The fourth child had not been appointed as attorney or replacement attorney. On the application of the Public Guardian the restriction was severed as being ineffective as part of an LPA, because it was not open to the donor to require that a person who was not an attorney should join in the making of decisions by the attorneys. (OPG summary.) 2009-11-292009 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions fettering authority of an attorney, No transcript
Re Bratt (2009) COP 14/4/09 — The donor appointed two attorneys, A and B, to act jointly and severally, and directed that "B is only to act as attorney in the event of A being physically or mentally incapable of acting in this capacity". On the application of the Public Guardian this provision was severed as being inconsistent with a joint and several appointment. The Senior Judge added that, to have achieved the desired objective, the donor should instead have appointed B to be a replacement attorney. (OPG summary.) 2009-11-292009 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re P (2009) COP 9/6/09 — The donor appointed three attorneys to act jointly and severally, and imposed the following restriction: "I require that two attorneys must act at any one time so that no attorney may act alone." On the application of the Public Guardian the court severed the restriction on the ground that it was ineffective as part of an LPA. (OPG summary.) 2009-11-292009 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Azancot (2009) COP 27/5/09 — The donor of a personal welfare LPA inserted a restriction that her replacement attorneys "may only act under this power in the event that the donor is physically or mentally incapacitated and there is written medical evidence to that effect". The words "physically or" were severed on the application of the Public Guardian, as the effect of section 11(7) of the MCA is that a personal welfare attorney may not make a decision unless the donor lacks mental capacity to make it. (OPG summary.) 2009-11-292009 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript
Re Bates (2008) COP 3/12/09 — The donor appointed two original attorneys and a replacement attorney, who would assume office in the following circumstances: “She may act at any time at the election of either attorney”. These words were severed on the application of the Public Guardian on the ground that a replacement attorney may only act on the occurrence of an event mentioned in section 13(6)(a) to (d) of the MCA, for example where an original attorney disclaims, dies or loses mental capacity. (OPG summary.) 2009-11-292008 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to when a replacement attorney may act, No transcript
Re Patel (2008) COP 1/12/08 — The donor appointed a replacement attorney to act if the original attorney should be “mentally or physically incapable” or if the original attorney “is not in England at any time that my personal or financial affairs require attention”. The words in bold were severed on the application of the Public Guardian on the ground that a replacement attorney may only act on the occurrence of an event mentioned in section 13(6)(a) to (d) of the MCA, for example where an original attorney disclaims, dies or loses mental capacity. (OPG summary.) 2009-11-292008 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to when a replacement attorney may act, No transcript
Re Jenkins (2008) COP 2/9/08 — The donor had appointed the attorneys of a property and affairs LPA to act “together and independently”. She then directed that they must act together in relation to any bills, payments or costs exceeding £2,000 in any one calendar month and in relation to any single payment greater than £1,000 in any calendar month. The donor had also appointed a replacement attorney, and directed that she should act if the original attorneys were “not available through travel or living abroad or any other circumstances that may prevent or restrict their capacity to act on my behalf as attorneys”. The court ordered the severance of both clauses, on the application of the Public Guardian. The directions in the first clause were incompatible with an appointment to act “together and independently”. The directions in the second clause were invalid because a replacement attorney may only act on the occurrence of an event mentioned in section 13(6)(a) to (d) of the MCA, for example where an ..→2009-11-292008 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to when a replacement attorney may act, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Begum (2008) COP 24/4/08 — On the application of the Public Guardian, the court directed the severance from a Property and Affairs LPA instrument of the following clauses, on the ground that they were ineffective as part of an LPA: (1) All decisions about the use or disposal of my property and financial resources must be driven by what my Personal Welfare Lasting Power of Attorney(s) believe will support my long term interests. (2) Any decisions affecting assets (individually or together) worth more than £5,000 at any one time must be discussed and agreed with Dr X. (3) In the event of there being any disagreement between my Personal Welfare Lasting Power of Attorney(s) and/or Dr X this should be resolved by these parties appointing an independent advocate to adjudicate. (OPG summary.) 2009-11-292008 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions fettering authority of an attorney, No transcript
Re Furlow (2009) COP 1/10/09 — The donor appointed X and Y to act jointly and severally. He included the following provision: "X shall act with general authority on my behalf in relation to all my property and affairs. Y shall act with authority to do the following on my behalf: To deal with my bank accounts and savings and investments in relation to my bank accounts, savings accounts and investments." He then added: "Y may deal with my bank investments subject to my prior approval." On the attorney's application, both provisions were severed. The first was incompatible with a joint and several appointment (as one attorney had more limited powers than the other), and the second was unworkable after the donor's loss of capacity. [OPG summary.) 2009-11-262009 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Ellis (2009) COP 17/11/09 — The donor appointed his wife as the original attorney and then appointed his two children as substitute attorneys to act in the event that the original attorney should be unable to act. However, the donor failed to specify whether the substitute attorneys should act jointly or jointly and severally. On the application of the attorneys, the appointment of the substitute attorneys was severed. Although the decision in Re J confirmed that substitute attorneys may be appointed in an EPA, the appointment of two or more substitutes is invalid if the donor has not specified that they are to act either jointly or jointly and severally. [OPG summary - EPA case.] 2009-11-252009 cases, Brief summary, EPA cases - all, EPA cases - appointment by donor of substitute attorneys, No transcript
Re Murdoch (2009) COP 30/10/09 — The donor executed an instrument intended to be a personal welfare LPA. It contained the following defects: (i) the certificate provider had failed to tick the first two mandatory boxes in Part B, (ii) the attorney had failed to tick any of the boxes in Part C, although he had dated and executed it, and (iii) the replacement attorney had ticked the appropriate boxes in his Part C but had not dated or executed it. The Public Guardian refused to register the instrument, and the donor subsequently lost capacity. On the attorney's application, the court directed the Public Guardian not to register the instrument, because "the errors in its execution are too fundamental". 2009-11-092009 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument is in prescribed form, No transcript
R (C) v SSJ (2009) EWHC x (Admin) — The decision to make C subject to polygraph testing as a condition of his licence did not breach the his Article 8 rights given the seriousness of his offences and his attitude to them; that the scheme was a pilot in his geographical area did not amount to discrimination under Article 14. 2009-10-242009 cases, Brief summary, Miscellaneous, No transcript
R (GC) v Managers of the Kingswood Centre of Central and North West London NHS Foundation Trust (2008) EWHC x (Admin) (CO/7784/2008) — The patient's compulsion to pick up litter, even if that litter was in the road, amounted to seriously irresponsible conduct in the context of the definition of mental impairment; the patient was likely to act in a dangerous manner so the hospital managers were right not to discharge. 2009-07-202008 cases, Brief summary, Hospital managers hearings, No transcript
R (Fitzpatrick) v MHRT (2005) CO/2778/2004 — Delay between deferred conditional discharge and eventual absolute discharge; Tribunal conceded judicial review against conditional discharge decision made without hearing, but disputed damages; damages of £4000 awarded by judge (frustration and distress, probability of earlier discharge). 2009-04-122005 cases, Detailed summary, No transcript, Tribunal delay
R v C [2008] EWCA Crim 1155 — If the complainant consented to sexual activity against her inclination because she was frightened of the defendant, even if her fear was irrational and caused by her mental disorder, it did not follow that she lacked the capacity to choose whether to agree to sexual activity. [Overturned on appeal.] 2008-12-142008 cases, Brief summary, Criminal law capacity cases, Missing from Bailii, No transcript, Other capacity cases
R (Evans) v Brockhill Prison [1996] EWHC Admin 234 — False imprisonment. 2008-09-121996 cases, Missing from Bailii, No summary, No transcript, Prison law cases

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