February 2013 update

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Case law

  • Capacity case (LPA). The OPG has published a summary of A, B and C v X, Y and Z [2012] EWHC 2400 (COP)M, [2012] MHLO 112 insofar as it relates to lasting powers of attorneys: The court was asked to make declarations as to whether X had capacity to do various things, including entering into marriage, litigating, making a will, managing his affairs, and making or revoking an enduring or lasting power of attorney. Paragraph 38 is of interest on the question of fluctuating or qualified capacity: "Let me then turn to the question of revocation or creation of enduring or lasting powers of attorney. First, I am not satisfied that it has been established that X lacked capacity to revoke the power of attorney in favour of the Applicants, even indeed if that was still a live issue given that the revocation has been accepted and the registration has been cancelled. I found the issue of power to create a new enduring* power of attorney very much more difficult for all the reasons that apply in relation to testamentary capacity. In the end, I have reached exactly the same conclusion. I am unwilling to make, on the evidence, a general declaration that he lacks capacity, but qualify that immediately by saying that the exercise of such a power, unless accompanied by contemporary medical evidence of capacity, would give rise to a serious risk of challenge or of refusal to register. It seems to me, for exactly the same reasons as I endeavoured to set out in relation to testamentary capacity, that X’s capacity is likely to diminish in the future and there will be times when undoubtedly he lacks capacity, just as there will be times when he retains it." [*The judge must have intended to refer to a new lasting power of attorney, as new enduring powers of attorney may not now be made.] A more detailed summary is available here: A, B and C v X, Y and Z [2012] EWHC 2400 (COP), [2012] MHLO 112



  • CPD scheme. The questionnaire for December 2012 has been uploaded, and the January 2013 questionnaire will follow shortly. Obtain 12 accredited CPD points online for £60 by subscribing today. See CPD scheme