OPG seeks Clarification from the Court of Protection in Re Public Guardians Severance Applications [2023] EWCOP 24
The Office of Public Guardian (OPG) has submitted an application to the Court of Protection (CoP) seeking judgement on 9 cases which include questions they are often asked about to seek clarification. The matters are in reference to:-
- Majority ruling by attorneys
- Replacement attorneys
- Lead attorneys
With regards majority ruling, the OPG have asked if severance applications should carry on being made if instruments seek to instruct multiple attorneys to act on a majority basis. It also asked whether an LPA including the word “should” or similar words, would make it a binding instruction or a non-binding preference.
With regards replacement attorneys, the OPG have sought clarification on whether it is lawful for the donor to replace a replacement attorney and if this is not possible, whether a replacement attorney can be re-appointed to act solely.
Lastly, with regards lead attorneys, the OPG have asked if it is lawful to give one attorney leading powers ahead of others where attorneys are appointed to act jointly and severally, which is something we have been asked in our technical inbox on a few occasions.
In addition to this, the OPG have asked if it is lawful to appoint attorneys jointly and severally but include instructions in the LPA for attorneys to deal with separate parts of the donor’s affairs or for restrictions to be included in the LPA.
Guidance
On considering the matters and cases put forward by the OPG, Mr Justice Hayden has offered some guidance stating that with regards primary power being given to one attorney over others where attorneys are appointed to act jointly and severally, this is not possible as must all act equally.
With regards instructions being included in the LPA for attorneys to deal with separate matters of the donor’s affairs, Mr Justice Hayden advised that the statute does not provide for this and that the difference between the language of the statute and the forms was “dangerous” and therefore needs to be revisited.
With regards replacement attorneys, Mr Justice Hayden accepted that section 10(8)(b) was slightly ambiguous but also added that this section states a secondary replacement attorney is allowed and “a scheme which prohibited the appointment of a secondary replacement might, equally logically, conflict with the objectives of the legislation.”
The full judgement can be found here: – https://www.bailii.org/ew/cases/EWCOP/2023/24.html
