Office of the Public Guardian v PGO & Ors, Re: BGO [2019] EWCOP 13

The court ruled that the P's LPAs were invalid as one of the attorneys had witnessed the donor's signature. The registration was cancelled.

In 2016 the P executed two LPAs in which she appointed her husband and two solicitors as her attorneys. The LPAs were registered by the Office of the Public Guardian and since then the P had lost capacity. Unfortunately, it was noticed that one of the attorneys had witnessed the P's signature in contravention of Regulation 9 of the Lasting Power of Attorney, Enduring Power of Attorney and Public Guardian Regulations 2007. The court had to decide whether the LPAs were invalid and if so, whether the registration should be cancelled, the problem of course being that fresh LPAs could not be executed because the P had by then lost capacity.

Paragraph 18 of Schedule 1 of the Mental Capacity Act 2005 stipulates that the court must direct the Public Guardian to cancel the registration of an instrument as a lasting power of attorney if it      determines under section 22(2)(a) that a requirement for creating the power was not met. The court held that they were invalid and the Public Guardian was directed to cancel their registration. 

Read the full text of the judgment on Bailii