Miles & Anor v The Public Guardian

The Mental Capacity Act 2005 permits a donor to structure a lasting power of attorney so that two named attorneys act jointly for specified important decisions, while acting jointly and severally for others. It also permits the surviving original attorney to be re-appointed to act alone if the other becomes unable or unwilling to act, provided the wording is clear and transparent. The statutory scheme should be construed purposively to preserve donor autonomy and flexibility. Confusing or ineffective surplus wording may be severed without invalidating the effective provisions.

These were appeals from decisions of Senior Judge Lush in the Court of Protection concerning identical or substantially identical provisions in lasting powers of attorney. The provisions appointed two original attorneys to act jointly for specified decisions and jointly and severally for others. They purported to re-appoint the sole surviving original attorney to act alone and to postpone the appointment of a replacement attorney until both original attorneys could no longer act.

The Senior Judge severed substantial parts of the provisions as ineffective. Permission to appeal was granted, and the appeals were heard together. The central issues were whether the statutory scheme permitted such arrangements and whether the wording used in the appellants’ instruments was sufficiently clear and effective.

1. Appeals allowed. The provisions in the lasting powers of attorney were effective to the extent identified below, and confusing or unnecessary wording was severed.
2. Under sections 9, 10 and 13 of the Mental Capacity Act 2005, appointments may be made jointly, jointly and severally, or on a hybrid basis. Where two attorneys are appointed jointly for some matters and jointly and severally for others, the surviving attorney cannot continue alone in relation to the jointly exercisable matters merely because the other attorney ceases to act, unless the instrument validly provides for that result.
3. The Act does not prohibit a donor from providing that, on one original attorney becoming unable or unwilling to act, the remaining named original attorney is re-appointed to act alone. A replacement attorney may be appointed to act only after both original attorneys have ceased to be able or willing to act. Such arrangements are permissible where the instrument states the intended operation with sufficient clarity and transparency.
4. The statutory provisions and prescribed forms should be interpreted purposively and beneficially. The object of the legislation includes enabling a person with capacity to determine who should manage his or her affairs after loss of capacity. It would be unduly restrictive to require a donor to use two separate lasting powers of attorney or to appoint a replacement attorney immediately where the intended arrangement can be clearly expressed in the instrument or continuation sheet.
5. The wording in Mrs Miles’s property and financial affairs lasting power of attorney was effective after excision of the bracketed words. The provisions concerning the replacement attorney were retained, while the fallback paragraph was severed as confusing and ineffective. Equivalent amendments were made to the health and welfare lasting power of attorney. In Mrs Beattie’s instrument, the relevant paragraph was reinstated subject to removal of the words “surviving” and “who are capable of acting”; the fallback paragraph remained severed.
6. The appeals were allowed in those terms. There was no order as to costs.

1. High Court (Chancery Division): appeals from decisions of Senior Judge Lush in the Court of Protection allowed on 1 July 2015.
2. Court of Protection: in Re Miles, provisions in a lasting power of attorney were held ineffective and severed by order dated 4 November 2014. In Re Beattie, materially identical wording was severed by order dated 6 November 2014.