Judgment concerning whether a donor under a Lasting Power of Attorney for Property and Financial Affairs (LPA) executed in 2009 had capacity to execute it.
The donor, RD, is aged 60 and has a learning disability and a diagnosis of chronic schizophrenia. He is currently subject to deprivation of liberty restrictions under which he cannot leave his care home without supervision. The LPA was purportedly executed on 17 December 2009, with his brothers and mother as executors (the mother had subsequently died). In 2019 the care home manager became concerned about the management of RD’s financial affairs and contacted the OPG and in the ensuing investigation a consultant concluded that it was ‘most likely’ that RD had not had capacity to execute the LPA in 2009.
In this judgment, Poole J notes that “although it is not uncommon for the courts to determine past capacity to execute an LPA, there is a dearth of published authority on the issue”. While the issues are not complex, the lack of judicial authority prompted him to publish this judgment. After concluding that he has sufficient evidence to decide the matter, and reminding himself of the statutory framework and relevant case law, he concludes RD did not have capacity to execute the LPA in 2009. This was broadly because the certificate provider at the time had made no mention of RD’s disability and there was no evidence they had experience of dealing with donors with a disability.
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