Francesca P.Gardner appeared in the first post Mental Capacity Act 2005 case to consider the issue of capacity to revoke a lasting power of attorney (“LPA”). The subject of the proceedings, SED appointed her family members to act under a LPA for her property and affairs to ensure that in circumstances where she was deemed to lack capacity, by virtue of being a hypomanic phase, a symptom of her long standing diagnosis of her bi-polar disorder, her property and affairs would be protected. The matter came before the court following SED’s attempt to revoke the LPAs, this was opposed by SED’s family members on the basis that SED was said to lack capacity as a result of her experiencing a further hypomanic phase.
The expert evidence before the court concluded that SED lacked capacity to make the decision to revoke the LPA and District Judge Glentworth considered the information that is relevant to the decision to revoke the LPA, she concluded that the relevant information is as follows:
(A) Who the attorneys are
(B) The authority of the attorneys;
(C) The reasons as to why it is said to be necessary or expedient to revoke the LPA;
(D) The foreseeable consequences of revoking the LPA; and
(E) The reasons for the original decision to appoint the attorneys.
The decision: The court held that SED did lack capacity to make the decision to revoke the LPA. However, despite the established lack of capacity and the absence of any evidence that SED’s family members may act in contravention of their authority or SED’s best interests, the court revoked the LPA on account of SED’s very strong wishes and feelings and accordingly appointed an independent financial deputy to manage her property and affairs.
The case illustrates the very fine balancing exercise that the court has to conduct, as to the weight to be attached to P’s wishes and feelings and it will depend on the facts of each case. The decision does provide a helpful checklist however to apply when determining whether P has the requisite capacity to revoke the LPA.
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