Alex Cisneros represents the Public Guardian in latest LPA guidance case before the Court of Protection

Alex Cisneros acted for the Office of the Public Guardian (“OPG”) in the latest guidance case before the Senior Judge of the Court of Protection, Her Honour Judge Hilder.

This case involved fifteen applications where the donor of a Lasting Power of Attorney (“LPA”) had attempted to instruct their attorney to provide financial assistance and maintenance to a person other than themselves. The OPG asked for guidance from the court as to whether this was permitted or whether the instruction would fall foul of the gifting provisions within s.12 of the Mental Capacity Act 2005.

The court confirmed that instructions within an LPA that provide for attorneys to use the donor’s funds to benefit persons other than the donor may be valid as a written statement of the donor’s wishes as long as they are expressed in precatory terms, but they would be ineffective as part of a lasting power of attorney if they were expressed in mandatory terms.

The judgment reiterates the primacy of best interests in decision making and provides accessible guidance to both the Public Guardian and practitioners involved in the drafting of LPAs.

The judgment can be found here.

Alex Cisneros is a specialist public law and private client barrister. If you wish to instruct Alex, please contact Matt Sale (+44 (0)20 7427 4910) or Peter Foad (+44 (0)20 7427 0807).

News 23 Sep, 2019